July 28, 2023
Myths About Prenuptial Agreements
Before marrying, some couples want to have a level of certainty about alimony, property settlement, and other details in case they get divorced. To do that they can enter into a contract, called a “prenuptial agreement” (often shortened to “prenup”) that deals with those concerns. As a general rule, prenups are enforceable, meaning the law will honor them in a divorce, but within certain limits. There are some myths about some of those limits that I will discuss.
Myth #1 – Property division and alimony must be fair. In fact, fairness doesn’t much matter. The terms can be one-sided and unfair but they can’t be “unconscionable” either when the agreement is made or to be enforced. “Unconscionable” is hard to define. One judge says you know it when you see it. For example, in a case where during the marriage a spouse became totally disabled due to an accident. Another judge defined it as “unjust.” So unfair is OK so long as it is not too, too unfair.
Myth #2 – A prenup can determine child custody. That is simply false. The best interest of the child determines custody. The courts always have the final say on custody.
Myth #3: – I can use my future spouse’s lawyer. For a prenup to be enforceable the law doesn’t require that each person have their own lawyer. It does require each person to have a “reasonable opportunity to consult with independent counsel.” The same lawyer simply cannot exercise independent judgment on behalf of each of the future spouses. And caution – one person’s decision to go unrepresented, especially if he or she is not as well off financially as the other, may be enough for the prenup to be unenforceable in the future. Each person engaging independent and experienced counsel is always a good investment toward a valid agreement. Not doing so isn’t worth the risk.