More Women Are Initiating Prenuptial Agreements

Prenuptial agreements (“prenups”) are designed to protect your assets in a divorce. When most people think about a prenuptial agreement, they usually think about the stereotypical situation in which an older, wealthy man marries a much younger woman or a second wife. However, attitudes about prenups are changing, and they have lost much of the stigma that many people associated with these agreements.

Prenuptial agreements are not just for wealthy men to protect their assets. With more women than ever before in the workforce and some out-earning men and many couples getting married later in life; women often bring assets into a marriage.

According to the Fall 2016 survey of the American Academy of Matrimonial Lawyers (AAML), 63% of divorce attorneys said they have experienced an increase in requests for prenups. A 2018 survey of the same group revealed that 54% of the attorneys cited an increase in the number of mothers paying child support during the past three years and 45% had seen a rise in women being responsible for alimony, which has led to an increase in women initiating the drafting of prenuptial agreements.

Any written agreement should be legally sound so that it will be upheld by the court if a dispute arises, and prenuptial agreements are no exception. There are several mistakes to avoid when drafting a prenuptial agreement.

1) Failing to Disclose Assets: Hiding assets or failing to disclose assets is a sure way for a prenup to be held invalid. A prenuptial agreement is a binding legal contract. Hiding or purposely failing to disclose assets shows that a Party to the contract failed to act in good faith.

2) Including Provisions About Child Support and Custody: Courts are tasked with determining what is in the best interest of the child, and as such, a court may not uphold the provisions of an agreement that violates the best interest rule. Also, the right to child support belongs to the child, and the court will not let a parent waive that right; although shared physical custody may nullify the child support obligation.

3) Forcing or Rushing Someone to Sign: Presenting a prenup to your future spouse days or weeks before the marriage or coercing a signature is not advisable. Contracts signed under duress can be found by a court to be null and void. Most attorneys recommend starting the prenuptial agreement process no later than six months before the marriage.

4) Not Having an Attorney for Both Parties: It is not required that both Parties to a prenup have an attorney, but it is strongly recommended. Only having one Party with an attorney weakens the agreement.

5) Having a One-sided Agreement: The prenuptial agreement should be financially fair to both Parties. Furthermore, outlandish provisions such as those about body weight, sexual relations, children from a previous marriage, and in-laws should be kept out of the prenuptial agreement.

Many women business owners don’t stop to consider that their business is an asset and fail to protect their business interests in the event of a divorce. If you own a business, you should give great thought as to how you want to divide your business interests with your future spouse, if at all, before you say “I Do.”

By Felita Cornog, Esq.

DISCLAIMER: Nothing in this article constitutes legal advice. The material is presented for information purposes only and does not form the basis for an attorney-client contract or relationship.