Creating a prenuptial agreement does not need to be a complicated process, but there are several mistakes couples should avoid when creating one. That’s where Aiello & DiFalco LLP comes in. We regularly help clients on Long Island and throughout the New York City area draft, negotiate, create, and review prenuptial agreements. When you work with us, you will be confident with our experienced family law attorney in your corner. Contact our Garden City office today to book a consultation.
About Prenuptial Agreements
A prenuptial agreement or prenup is a legally binding agreement between two individuals before marriage. A prenup spells out the rights and obligations of each spouse in the event of divorce or separation. Prenuptial agreements can benefit individuals with significant assets, those who own a business, or those with children from a previous marriage. But prenups are becoming more common, regardless of financial or family status. They are increasingly common among millennials and other young professionals who are getting married after acquiring some assets.
Common Mistakes in Prenuptial Agreements
One of the most common mistakes when creating a prenuptial agreement is failing to consult an experienced family law attorney. Some believe they can prepare their own prenup or use an online template. Prenuptial agreements are legally binding – but they may be unenforceable or may create more confusion than they help avoid if not drafted properly.
Prenups must be fair for both parties – if a court finds that one party agreed to unconscionable terms without being advised by an attorney, some or all of the agreement may be unenforceable. Importantly, it is better for each party to have independent counsel, although that does not preclude other drafting options.
Other mistakes to avoid in a prenuptial agreement include:
Procrastination
While you may want to focus on the blissful aspects of planning your wedding, don’t neglect the “less romantic” topics of a prenuptial agreement or the potential of divorce. While it may seem uncomfortable to discuss these matters, ignoring them could have serious consequences. Prenuptial agreements can provide valuable protection for both parties in the event of a divorce or unexpected death.
However, waiting until the last minute to discuss and sign a prenup can create issues of validity and enforceability. It also creates a lot more pressure and stress than the negotiation of a planning document like a prenuptial agreement should create during the excitement of planning for a wedding. There is no specific time frame for signing a prenuptial agreement, but a court may not uphold the prenup if it finds that either party was under pressure or coerced due to the imminent wedding date.
The parties must have enough time to negotiate the terms, consult with their attorneys, draft and review the agreement, and make necessary revisions. So it’s highly recommended that the parties sign the prenup several months prior to the wedding.
Not Fully Disclosing Finances
For a prenuptial agreement to be considered valid, both parties must present a complete and fair disclosure of their financial status. This includes:
- Assets such as bank accounts, retirement accounts, pensions, annuities, stocks, bonds, real estate, personal property, motor vehicles, business interests, trust interests, life insurance cash balance, judgments/liens, notes held, escrow funds, and pending or expected future inheritances
- Debts, including student loans, car loans, credit card balances, mortgages, notes, outstanding liens, or judgments
- Income, including wages, salary, tips, commissions, bonuses, royalties, business profits, rental income, dividends, trust distributions, retirement benefits, government benefits, worker’s compensation, disability income, alimony, and child support from a prior relationship
Both parties should provide supporting documentation such as account statements, appraisals, and tax returns. Not disclosing or misrepresenting any financial information may result in the prenuptial agreement being deemed invalid or unenforceable.
Including Invalid or Unenforceable Provisions
Prenuptial agreements can address various aspects of a couple’s financial arrangement. These include the division of pre-marital and marital assets, treatment of future inheritances, division of liabilities, future alimony obligations, and sharing expenses.
However, prenups must be reasonable and just. Any agreement that is deemed unfair may not be upheld in court. Moreover, couples should avoid incorporating provisions that violate public policy, such as clauses that waive child support or custody.
Additionally, some may attempt to include provisions regarding infidelity. Such clauses are usually unenforceable and should be avoided.
Why You Need an Attorney for a Prenuptial Agreement
Working with a family law attorney is essential for creating a valid and enforceable prenuptial agreement. When you come to Aiello & DiFalco, we can help you understand your rights and obligations and identify and disclose all your assets and liabilities, ensuring that the prenuptial agreement is legally valid. In addition, we can help you negotiate the terms of the prenuptial agreement with your future spouse, ensuring that it is fair and reasonable. Above all, we can help you avoid common mistakes when creating a prenup.
Talk To An Experienced Attorney About Your Prenuptial Agreement Today
Prenuptial agreements can be a source of stress and anxiety for many couples, especially when discussing sensitive topics such as finances and property. You can depend on us to provide guidance and support throughout the process, help to reduce stress, and ensure that the prenuptial agreement meets your needs and protects your interests. Contact us today to get started.