If You're Thinking About a Prenup, Get a Lawyer

By: Michael M. Giel
Last Update: October 30, 2016

There are any number of reasons why a couple may decide to sign a prenuptial agreement.

Some may want to take a "what's yours is yours, what's mine is mine" approach to their marriage if things don't work out.

Brittany Spears was worth a fortune when she divorced backup dancer Kevin Federline, who was not. Thanks to their prenup, he received $1 million, but no more.

Jessica Simpson and Nick Lachey, on the other hand, didn't have a prenup. When she filed for divorce a little more than three years after they married, Nick ended up with a little less than half of their assets. No wonder she called her marriage to Nick the biggest money mistake in her life. And it's no surprise that you'll see "no prenuptial agreement" sprinkled throughout the list of the "10 Most Expensive Divorces of 2015." 

Beyond dollar signs, there are often greater business concerns that can drive a decision to sign a prenuptial agreement. If you're a key partner or shareholder in your business and you don't have a prenup, a divorce might wreak havoc not only on you, but also on your business and the employees and customers who depend on it. As Patrick Yeatts points out in "How to Protect Your Business in a Divorce": "For family-owned small businesses run by married couples, a poorly handled divorce can mean financial ruin and the end of the business... A spouse may be entitled to as much as half of the business in a divorce, and you could wind up with an ex-spouse — or your business partner’s ex-spouse — as a business partner." 

Putting business aside, sometimes prenups are important to a couple because of more intimate provisions, such as Denise Richards' or Catherine Zeta Jones' infidelity clauses that provide a heavy cost for a spouse who strays. Many states recognize the validity of an adultery clause that provides, for instance, that no one gets alimony unless someone cheated.

In any event, a prenup should not be a dirty word. Sure, an agreement might resolve property or income questions differently than a court would if no agreement existed. But this doesn't mean that the couple's arrangement necessarily is a bad deal or violates state law.

To the contrary, as Terry Savage points out in Libby Kane's "Here's Why Every Couple Should Get a Prenup Before Marriage," it can foster "honest, upfront communication" and make the process less contentious in the event the couple decides to divorce. Terry Savage's co-author, Gemma B. Allen, agrees, explaining that a prenup can alleviate confusion and help give couples control over their future. 

What's more, because a prenup can streamline the process of divorce and help establish the spouses' financial rights and responsibilities, it can help minimize the bitterness and resentment that can follow divorce. This is especially important when there are children involved. After all, positive co-parenting is crucial, and it can be challenging enough even without lingering resentment.  

If you're thinking about getting a prenuptial agreement -- or if your soon-to-be spouse is talking about it -- talk to a family law attorney. As U.S. Supreme Court Justice Stevens stated, "The adage that 'a lawyer who represents himself has a fool for a client' is the product of years of experience by seasoned litigators."

This is all the more true if you're attempting to negotiate a prenuptial agreement yourself. If there is a place for LegalZoom, it's certainly not here. Family law courts scrutinize prenuptial agreements and often conclude that one or more provisions does not establish the protection that the engaged couple thought it did when they signed. 

Florida provides a great example of the potential landmines that can rest in apparently clear language. Until the Florida Supreme Court's recent decision in Hahamovitch v. Hahamovitch, various Florida courts had held that certain language -- in which each person waived all interest in the other's individual property -- did not necessarily apply to a spouse's earnings or property acquired individually with those earnings.

Likewise, if you don't have an attorney, you may very well make decisions based on misconceptions of the law. For instance, you might think that certain property you own under your name is for that reason protected from a divorce. In Lena Masri's "3 Tips for Single Female Home Buyers," Farnoosh Torabi suggests that a woman seeking to protect her property can, as an alternative to a prenup, choose to have the property titled in her name alone. But in many states -- and definitely in Florida -- the fact that property is in one spouse's name does not settle the question of whether property is or can become marital property.

In sum, seriously think about a prenup before deciding for or against it -- and, if you want to avoid a nasty surprise in the event your marriage ends, hire an attorney to evaluate and prepare the agreement.


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