All too frequently we receive calls from clients advising they have fallen madly in love. The wedding is in a month and the issue of a prenup has suddenly come to the forefront. This is along with the final invitation list, rings, honeymoon plans, photographer, and concerns about how their respective children, parents, business partners, estates, and or former spouses figure into the new marriage. Often, only one of the parties wants the prenup.
My initial response is a month does not provide much time to formulate a fair and reasoned agreement. Issues of duress, coercion, arms-length negotiation, separate legal representation, and complete disclosure of all assets come to mind. A review of family law reveals broad protection of premarital assets when they are maintained in their separate status, without the necessity of a prenup.
However, there are landmines.
The party seeking to maintain the exempt status must be meticulous in record-keeping, ensuring taxes attributable to the asset are paid from that asset or another exempt asset, among many other considerations.
There should be soul searching. What are you trying to protect? Why? How long? If the answer is forever, despite the contributions of the new spouse over a period of many years, be careful that a court of equity might see things very differently when the time comes for enforcement.
Thoroughgoing knowledge of our case and statutory authority is imperative when considering the prenup. For some couples it is a road map for divorce. For others who are coming into the marriage with significant assets, consulting with an experienced family lawyer brings peace of mind and added protection for your future.
Candace R. Scott, LLC
Certified Matrimonial Law Attorney
Member of the American Academy of Matrimonial Lawyers
Collaborative Law, Mediation, and Arbitration Services