By Beverly Bird
If you’re planning to marry and you’ve decided that a prenuptial agreement is right for you, you might be tempted to hire an attorney to draft it or to purchase a kit. However, it may not be necessary. Some states require that you and your intended spouse each have an attorney review your premarital contract, and that's always a good idea. But a prenup is your own personal document. Within reason and as long as it’s fair, it can include anything you want it to and you can draft it yourself.
Prenuptial agreements require full disclosure by both potential spouses to be legally valid. Before you draft your prenup, you and your fiancé should each create comprehensive lists of every asset you own and every debt you owe. This includes the automobiles each of you have, as well as loans against them, even if you know you’ll be trading them in soon. It includes real estate, mortgages, credit card balances, retirement benefits, checking and savings accounts, life insurance policies, inheritances and investment accounts. Attach each list to your prenup, ideally with statements or receipts showing each asset’s value.
After each of you has prepared a list of everything you own, decide how you want to address each item in the event of death or divorce. If you have children from a previous relationship, you might want to state that your premarital property goes to them when you die, and that your future spouse has no interest in it in the event of divorce. Also decide how you want to treat property you purchase together after the marriage. If you intend to divide it equally between you if you divorce, say so. Be reasonable. If your terms are grossly unfair to one spouse, the court probably won’t uphold your agreement.
Decide what you’re going to do about debts, both those you’re bringing into the marriage and those you will incur together. For example, you might each pay your existing debts from your own earnings, and split all new debts 50/50 or 60/40. Again, you want to avoid a split that seems unfair. For example, an 80/20 split of marital debt probably won't be upheld in court if your spouse decides to contest it.
Courts won’t allow you to waive your right to pay or receive child support for your future children in a prenup. However, you can set terms for spousal support or alimony. Your agreement must be fair or you risk a court overturning it. For instance, if one spouse is not expected to work during the marriage and won’t be maintaining or developing job skills, a judge probably will not honor a prenup that states she won’t receive any support or maintenance post-divorce. You can also include a budget you want to follow when you’re married, such as which spouse will pay what monthly bills.
Most states require that the signatures on your prenuptial agreement are either witnessed or notarized. If you have lawyers review the document for completeness and validity, it’s a good idea to have them witness your signatures as well. You and your spouse cannot both use the same attorney for review purposes. Ethically, a lawyer can only act as an advocate for one of you. Some states require that you sign your prenup well in advance of your wedding date. Even if your state has no such requirement, signing it a month or so ahead of time will eliminate the risk that one of you can say you were coerced into signing it at the eleventh hour.
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.