Do Prenups Hold Water?
I’ve seen a lot of social media “know-it-alls” advising their followers never to get a prenup because they’re always thrown out in Court.
They’re Wrong.
NEVER trust influencers on social media. They’re not lawyers, and some of them advising this aren’t married!
They’ve probably never seen a prenup, and never will.
You Already Have a Prenup
Also, you ALREADY technically have a “prenuptial agreement” – it’s called state law.
2️⃣ “A prenup jinxes the marriage.”
No, it does not.
You already HAVE a prenup. It’s called state law. If you don’t talk about how the law applies to you, you get the default law that applies to everyone – the great unwashed.
— Lawyer Kelly (@lawyerkelly) May 8, 2023
8️⃣ “A prenup is just preparing for divorce.”
Again, you already have a prenup – state law.
Prenups don’t prepare you for divorce any more than getting married does. #prenuptialagreements #iheardarumor #misconceptions
— Lawyer Kelly (@lawyerkelly) May 8, 2023
Do Prenups Hold Water?
Back to the point of this blog post.
Answer: Yes, if your prenuptial agreement is properly drafted, it will most likely hold water in Court.
What does it mean to be properly drafted? You’re in luck, I have a blog post on this! How do I guarantee my prenuptial agreement is enforceable?
If You Have a Prenup, Don’t Worry
If you are the type that worries about prenups being challenged, you should most definitely get a prenup.
Why?
Because the consequences of not having a prenup at all trump the consequences of an unenforceable prenup.
Think about it: what’s worse? Not having a prenup, or having a prenup that won’t be enforced in Court?
It’s Always Better to Have a Prenuptial Agreement
Yes, prenuptial agreements are sometimes successfully challenged. Which means there is a risk for failure. But you know what else sometimes fails? Parachutes, birth control, and bullet-proof vests.
It’s STILL better to wear a parachute when you skydive, wear a condom if you are not ready to parent, and wear a bullet-proof vest if bullets come flying at you.
Normal Reasonable People Don’t Challenge Things They Sign
I know it’s really risky to use the word “normal” these days, but I’m just going to say it: normal people don’t challenge things they sign.
Most people aren’t so malicious that they would sneakily sign something (knowing they intend to challenge it later.)
It’s Expensive to Challenge a Prenup!
In addition, lawyers are not cheap. Especially lawyers. We charge by the hour. It costs money to challenge a prenuptial agreement. Basically, if you want to challenge it, you would file a divorce action, and then bifurcate the issue of the validity of the prenup. Then you would set that particular issue for trial before the rest of the issues.
In some cases, after the prenuptial agreement is held to be valid, the issues on the rest of the divorce should be easier to resolve. However, this is NOT the norm. Most litigious couples in divorces will continue to fight over anything and everything.
What If I Married an Unreasonable, Abnormal Person?
This is always a worry. People change.
This blog post may help you: Keeping Property Separate Without a Prenup.
If they do challenge it, it would probably be on one of these grounds. Make sure you protect against these!
Lack of Disclosures
The most common reason for challenging prenups is lack of full disclosure. That is, the challenger claims, “I would never have signed the prenuptial agreement had you been honest about your stuff.”
Thus, you must be super honest about all of your assets and debts. For a prenuptial agreement to be enforceable, you must be completely transparent with your finances, and exchange full disclosures.
This is mandatory.
There should NEVER be any secrets in your marriage, financial or otherwise. Having a prenup forces the transparency in finaces.
Duress
Another reason for challenging a prenup is duress. That is, the challenger claims, “I was forced to sign. I had no choice.”
To combat this, it is essential both sides are adequately represented by independent competent counsel, who will explain the legality PRIOR to signing.
Each party MUST have their own lawyer. The lawyer CANNOT represent BOTH sides.
In addition, you should leave plenty of time before your wedding to combat the duress claim. Good practice would be to finalize the prenuptial agreement before you set a wedding date.
You Lost Your Prenup
I can’t tell you how many prospective clients have called and said, “I have a prenup but I can’t find it. The other side should have a copy, or you can get it from the lawyer that drafted it.”
Yeah, no. The former lawyer is retired, and doesn’t have your file after 50 years. And trust me, if you’ve misplaced it, your spouse isn’t going to volunteer it.
Do not lose your prenuptial agreement. Once it is signed, keep it somewhere safe.
Unenforceable Clauses
Prenuptial agreements govern financial matters. NOT child custody, religion, personal matters, or child support.
You are free to put whatever you want in a prenup, i.e. “Sex 10x a week for duration of marriage, or no alimony”.”, but it will NOT be enforced, and if the other side challenges it, they will win, and you will be airing your dirty laundry for the internet. Read What Should NOT Go in a prenuptial agreement.
Have a Prenuptial Agreement Strengthens Your Bargaining Position
At the end of the day, have prenups been successfully tossed out in Court? Yes.
But having one is much better than not having one, because it strengthens your bargaining position.
Prenups hold water!
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