Last week, the New York Times had an article about the boom of weddings that are anticipated for 2021 and beyond. Even though there are restrictions on travel and gatherings, the wedding industry is expecting a big rebound this year. We are all becoming more familiar with the various restrictions and social-distancing needed to be able to have a small celebration. As some of these restrictions relax, we can do more in-person ceremonies. Over the past year, we've also seen a lot of creative ways to have a wedding ceremony. One thing that hasn't changed on my end is the need for consultations with clients about the prenup they want before they walk down the aisle (virtual or in-person). The consultations have become virtual, but the rules for prenups haven't changed.

How Can You Use a Prenup? 

Each state has its own rules about what happens to your money and debts in the case of a divorce or separation. Much like creating a will, which lets you choose what happens to your assets after you die, a prenup lets you choose what happens to your assets and liabilities in case of a divorce. You can also use it to protect yourself from debt that your spouse took on before you got married. Some people run their own businesses and want to make sure the business is protected before they tie the knot. There can be a variety of reasons why a prenup could be a good option for you and your spouse.

Is There Anything That Can't Be in a Prenup?

There are limitations to what you can include in your prenup. For example, you can't create some kind of illegal agreement (i.e. if you cheat on me, I get to shoot you in the leg). You also can't decide in advance who will have custody of your children that haven't been born yet (although if you have children from a prior relationship, the child support and alimony obligations are important to address when putting together a prenup). Child support for children that you haven't had yet can't be limited or determined in your prenup.

But beyond these examples, there are plenty of other creative ideas you can include. A common agreement issue is awarding alimony depending on how long you are married (i.e. the longer you are married, the more alimony you'll receive/pay).

Do You Need a Lawyer?

This is a legal agreement and as a lawyer, I'll usually tell my clients that you need a lawyer involved. In the best-case scenario, both you and your soon-to-be spouse will have lawyers. If you search hard enough, you can probably find some website or company that will take a few dollars to mail-merge your information into their generic forms. But you need to be careful about what you sign! I recently reviewed a prenup for a couple who were working on their wills and we found that the form website they used back in the day for their prenup selected Alabama as the state's law that governed (they live in Minnesota and had never been to Alabama). Our best guess is that someone forgot to select the correct state and it defaulted alphabetically to Alabama! So be warned that agreements you find online are often hardly worth what you pay for. The cheaper it is, the more problems you can anticipate down the road...

Rather than end up with an Alabama (or Alaska, Arizona, Arkansas...) prenup, it is a better idea to speak to an attorney to discuss whether you even need a prenup or not. In full candor, many of the people I meet with are happy to hear that they really don't need a prenup and can use that money instead on their wedding.

Before you meet with an attorney, you want to consider:

You'll also want to make sure that you've had a frank and open discussion with your soon-to-be spouse. Trying to create a prenup without this discussion is a recipe for disaster. You can end up with hurt feelings and a bit of distrust if one of you suddenly springs the idea of a prenup on the other and hands over a 20-page document ready to be reviewed and signed. This could also lead to the agreement being invalid if the person feels they were "forced" to sign the agreement.

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Next Steps

Weddings are still happening and if yours is coming up and you want to discuss if a prenuptial agreement is right for you and your soon-to-be spouse, let's set up a Legal Strategy Session and we can review the best options for you.

Andrew Ayers
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I work with business and estate planning clients to craft legal solutions to protect their legacies.
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