By: Erin M. Idler, Attorney & Mediator
Prenuptial agreements, also known as Marital Property Agreements, have become increasingly popular before couples marry. Postnuptial agreements are also an option during marriage. These agreements are used to specify how you and your partner want your assets held during the marriage and what happens to those assets in the event of divorce or death when you want to do something different than what the law would otherwise provide for. Understanding the law and future financial choices helps you both make well-informed decisions. Discussing each other’s financial expectations and personal values about income, assets, and debts, including considering a prenup, can provide a positive foundation that supports open communication about finances during a couple’s marriage.
Sound agreements must meet four basic criteria to be “procedurally and substantively fair”: 1) each of you was represented by your own lawyer; 2) each had adequate time to review the agreement and financial disclosures to enter it voluntarily; 3) each understands the terms of the agreement and your rights with and without it; and 4) the agreement is fair at the time of the making and at the time of divorce. These factors support the validity and enforceability of your agreement.
There is no one way to prepare a prenup. Prenups are contracts between you and your partner to help set clear expectations for both of you in your marriage and beyond, which means they can and should be creative and unique to the two of you. You and your partner may want to consider mediation or a collaborative two-lawyer approach as an option to help you jointly prepare your agreement together. Understanding your options and goals for your agreement is a key first step that can help you reach a final resolution.
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