What type of lawyer do I need for a prenuptial agreement?

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Marriages are a legally binding contract, and the state where couples reside will have a say in the couple’s property rights, both during marriage and upon the severance of the marriage through divorce. A prenuptial agreement is another legally binding contract that allows couples to set their own terms for the division of property and other assets, among other things. Having a family law professional who understands divorce law assist you in drafting your prenuptial agreement can make a major difference in whether it will stand up in court if challenged during a divorce.

How can an attorney help you with your prenuptial agreement?

A family law attorney can represent one or both partners who are entering into a prenuptial agreement, and in the right circumstances, they can help you negotiate fair terms. A prenuptial agreement attorney should be able to offer you assistance in the following ways:

  • Point out the potential advantages within the prenup
  • Review or assess your individual assets
  • Review another prenup that had been prepared by another attorney
  • Draft the prenuptial agreement for you
  • Should the need arise, represent you to either enforce or contest a prenup in the event of a divorce

Simply stated, the best reason to hire a family law attorney to aid you with your prenup is to avoid the possibility of having the agreement declared invalid, either during the course of the marriage or during a divorce. Each spouse should have their own attorney to help review the prenup before it is signed. And in general, while legal representation is not required during the time that you put your prenup together, courts will be somewhat cautious about enforcing the terms of the agreement if one or both parties did not have independent representation.

Why would I want a prenuptial agreement?

One thing you will find out when you get married is that without a prenup states mandate that each spouse receives automatic property rights. This means that spouses share ownership of property acquired during the marriage, as well as the right to control or manage that property. If the parties would want to manage the property differently, then they would need to have a prenup in place. Here are some other reasons for why you would want a prenup:

  • It keeps your finances separate: a prenup will define what assets are separate property of one spouse, or whether that asset(s) will become a part of the marital estate.
  • It provides support to children from prior relationships: in the event of their parent’s death, a prenup can ensure that the child(ren) will earn an inheritance. 
  • Draws a line on property rights in the event of a divorce: without a prenup, state law will determine how to divide the property that was accrued during the marriage.
  • Established financial responsibilities during marriage: a prenup can establish whether or not a couple will have things like a joint or separate bank account, or what their estate plans will look like in the event of a divorce or death.
  • If one partner is more financially secure than the other.
  • If you are getting married for the second or third time.
  • If you or your fiancé have large debts.
  • If you or your fiancé own a business.

If you are on the fence about creating a prenup agreement, it is never too late to begin negotiations or drafting if you are still in your engagement period. Again, you should seek out a family law attorney to assist you in this process.

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