As the weather warms up, the summer wedding season is here, and for me, that also means reviewing prenups with my clients. Almost all of my clients have heard of prenups before. However, their understandings of how they work can be all over the place. I think sometimes we see dramatic prenup scenes in movies or on tv. People can fall into two camps:
- I’ll sign it on my way to the wedding ceremony (NO, NO, PLEASE, NO)
- The prenup will take some time to negotiate and sign in advance of the wedding (YES)
Those in the second camp have normally watched too much drama on the screen. It makes for a great Hallmark movie to have someone dressed like Santa Claus get married on Christmas Eve. Just as they are rushing to the alter, a prenup is produced from somewhere for everyone to sign. (Because, of course, Santa needs to protect his North Pole assets…) In reality, this is a terrible idea and is most likely not a valid prenup.
How Do We Draft a Prenup?
Each state has its own statutes and rules regarding prenups. For example, in Minnesota, a valid prenup must be
- In writing;
- Executed by parties of legal age;
- Executed after each person has an opportunity to consult with an attorney of their choice;
- Signed before the marriage (if it was after, it would be a postnup…);
- Witnessed by 2 people; and
- Accompanied by full and fair disclosure of earnings of both parties.
Chances are you can write up a document that meets these requirements, but then you also need to make sure you get the process correct.
So back to our original question, you don’t need a lawyer to have a valid prenup. But each of you has to have an opportunity to consult with an attorney before you sign the prenup. Based on my experience, that attorney review is the most important part of the process. The attorney will often see issues that you two may not have considered. Perhaps you are copying someone else’s form. Or you downloaded a basic template from a website, but you’re using the wrong form and you don’t know it.
The simple answer is that you don’t need a lawyer to create a valid prenup. But there are too many different steps in the process where you could innocently get tripped up. So spending some time consulting with a lawyer could be time well-spent. If that prenup ends up being invalid, you could find yourself in a precarious position…