Signing off on a prenup without a lawyer is a mistake for a host of reasons.
A few months ago, a friend, law school classmate and former roommate (i.e. someone who knows me and what I do really well), texted me looking for a referral for someone who knew how to write a prenup for a friend who was getting married in a few months. Here’s part of that exchange:
Friend: Hey, do you know someone who could do a prenup for a friend of mine?
Me: Me. I do that.
Friend: Oh, I didn’t realize divorce lawyers also did prenups.
Me: Yeah, that’s definitely something that we do. In fact, I don’t think a non-divorce lawyer should do them at all.
That conversation got me thinking. If another lawyer didn’t know that a divorce lawyer should write a prenup, what was the likelihood that someone who needed a prenup knew? Does this mean that couples needing prenups are specifically avoiding divorce lawyers for this kind of legal help?
That’s when I got worried. I get it. People see divorce lawyers as the grim reapers of marriage. And who wants to think about death on the birth of a marriage? While I don’t wear all black (well, sometimes) or carry a sickle, I, and my fellow divorce lawyers, spend a lot of time taking care of people when their marriages are ending and their families are falling apart. And that is exactly why a divorce lawyer should write your prenup.
What is a prenup?
Before we get into why you should hire a divorce lawyer to write a prenup, let’s talk about what a prenup is. In its most basic form, a prenup is a contract signed by a couple before marriage saying how they would like to divide certain assets and debts if they divorce. It only becomes effective when you wed.
A well written prenup will list all of the assets and debts that each party has at the time of the marriage. The agreement then sets forth how they will divide up any assets or debts owned either before or during the marriage. Usually, anything that you own prior to the marriage is excluded from division. This means that you don’t have to share it with your spouse should you divorce.
The prenup will also explain how you and your spouse will divide the property that you acquire together during your marriage. Usually this property is split equally (i.e. 50/50). Prenups can also include clauses about buying a home, spousal support, and a lump sum payment from one spouse to another if a divorce occurs.
Prenups generally cannot include language regarding who would get custody of the children or how much one would owe for child support. This is because such provisions are generally against the public policy of most states.
However, just simply having a prenup isn’t enough. You need to hire a lawyer who knows how to write a prenup so that it will stand up in the event that your marriage doesn’t work out.
Why get a prenup?
Contrary to popular opinion (or misconception), prenuptial agreements are not just for the wealthy. A common excuse that I hear from engaged couples is that they “don’t have anything” worth the cost of hiring a lawyer to prepare a prenup. I disagree! You and your intended don’t need to have anything of value right know to agree on how you would distribute your future property if your marriage doesn’t work out.
Luckily, more and more couples are seeing the benefits of entering into prenuptial agreements. In fact, attorneys are seeing a rise in prenups, particularly among millennials. I think one reason is that people are getting married later in life. Often by the time these parties walk down the aisle, one or both already own a house and/or have significant retirement accounts. As a result, like a two year old and their favorite toy, these millennials don’t wish to share their hard earned assets if the marriage doesn’t work out.
I also see a lot of clients who are entering a second marriage and want a prenup because of what happened in their first. These parties are still bearing the fiscal scars of their first divorce (as well as the legal bills) and wish to avoid the same fate with their second spouse.
Most importantly, setting forth how you want to divide your property and address spousal support now, when you get along, is a great way to save time, money and emotions for when you don’t. In other words, it’s doing the financial work of a divorce on the front end so the back end goes quickly, smoothly, and cheaply. And who better to help you do that than hiring a divorce lawyer who knows how to write a prenup to protect you for what could happen in the event of a divorce?
Why you need to hire a lawyer who knows how to write a prenup.
Not all prenuptial agreements are created equal. This especially applies to prenups that are prepared by attorneys who simply don’t know what they are doing. If your prenup is not prepared correctly or doesn’t include all of the list of assets to be excluded from division, it could be declared void. This would result in lengthy court proceedings and expenses, the exact result you wished to avoid in the first place by entering into such an agreement!!!
Yikes! So, you may be asking yourself, why is it better to hire a divorce lawyer than a lawyer who doesn’t specialize (or, worse know really anything about) divorce law?
Knowing divorce law is key to knowing how to write a prenup.
The purpose of a prenup is to set forth how you would like your assets and debts to be divided up in case your marriage ends in divorce. By signing your prenup you are saying, I know how a court would divide up our property if we got divorced but we are agreeing to do it another way, which may or may not be how a court would rule.
How can you know what a divorce court would order if you don’t have a divorce lawyer to explain it to you? Not all lawyers know all areas of law. For example, no one should hire me to represent them in a murder trial, no matter how many episodes of Law and Order I’ve seen. Understanding what rights you may be giving up (i.e. an alimony award or a different kind of split of the assets) is key to a good prenuptial agreement. A lawyer who doesn’t know the ins and outs of divorce law can’t possibly fully explain to you the effect of the prenup and how this differs from having your divorce proceed through the courts.
A divorce lawyer can write your prenup to protect you from the “worst case scenario.”
In addition to being able to thoroughly and expertly explain divorce law to you, a divorce lawyer can write a prenup to protect you from “worst case scenario.” When you are engaged to someone, it can be hard to see how they could ever do anything to hurt you, either emotionally or financially.
That’s where an experienced divorce lawyer can be especially helpful. We have seen the worst of the worst. We know what the most in-love couple can do to each other when they fall out of love. Every divorce case is different and with different comes knowledge. A divorce lawyer can use that knowledge to your advantage to prepare a prenup that will protect your financial interests in the event that your marriage goes south.
Therefore, don’t hire someone who isn’t experienced in preparing these kinds of agreements and please, please don’t do it yourself with a form from the internet (yes, I’ve seen those too). I know it’s not fun to add “prenuptial agreement” to your wedding budget when you’d rather use that money for flowers or a Belgian waffle bar. However, hiring an experienced divorce lawyer to write a prenup is money well spent. It can save you thousands if the marriage doesn’t work out.
For the last ten+ years, Elizabeth Billies has been working as a divorce attorney in suburban Philadelphia. During this time, she’s represented hundreds of men and women going through separation and divorce. In doing so she has learned a few (maybe more than a few) things about relationships and the divorce process. In addition, to her family law practice, Liz also operates her blog, the Divorce Lawyer Life, where she shares her knowledge about all things divorce.
DISCLAIMER: The commentary, advice, and opinions from Gabrielle Hartley are for informational purposes only and not for the purpose of providing legal advice or mental health services. You should contact an attorney and/or mental health professional in your state to obtain advice with respect to any particular issue or problem.