The Checklist: Ten Elements No Prenuptial Agreement Should Be Without

By Mike | July 15, 2019

Before drafting a prenuptial agreement, couples need to know what should go into this document. Following are ten elements any document of this type should include.

Written Document

 A prenuptial agreement must be written. A verbal agreement cannot and will not be enforced by a court of law. Steven Spielberg lost $100 million to Amy Irving when their four-year marriage ended because the agreement was drafted on a napkin and Ms. Irving wasn’t represented by an attorney. If assistance is needed in drafting this agreement, Lawrence & Jurkiewicz can be of help. 

Debt Protection

 This type of agreement is of great help in protecting a spouse from incurring debt accumulated by the other party. Marital property cannot be seized when only one partner is the debtor and the agreement limits the other partner’s debt liability. 

Child Provisions

 Many couples divorce only to have one or both parties remarry at a later date. A prenuptial agreement is needed to provide for children from the prior marriage. The document outlines what property they will receive upon the death of their parent to ensure it ends up in the right hands. 

Property Distribution

 Individuals often request a prenuptial agreement to ensure they dictate how property is distributed in the event of a divorce. For example, a couple may put in the agreement that any inheritance received by one party during the marriage remains the sole property of that party. Items listed in the prenuptial agreement are not included in any part of a divorce settlement. 

Voluntary Agreement

 Both parties must voluntarily agree to this agreement or it will not be considered valid. This is why a lawyer is needed to represent each party. Having separate representation ensures one party is not pressured into signing the document. His or her lawyer works to protect the rights of their client rather than the other party and makes certain this does not take place.

Conscionable

 All portions of the agreement must be conscionable. For example, one partner may not put in the agreement that he or she will get full custody of the children in the event of a divorce. This is not fair or reasonable and will also be harmful to the children. Courts will not uphold any agreement that contains items that are clearly unfair or unreasonable. 

Full Disclosure at the Time of Execution

 Each party must fully disclose his or her assets and debts when drafting this agreement. A failure to do so will lead to the document being thrown out in a court of law. While this information needs to be provided before the document is signed, an updated copy should also be shared with the other party closer to the marriage, especially if one party’s financial circumstances have changed significantly.

Family Property

 Each party may enter a relationship with items that have been passed down in their family for generations. The agreement may be used to state that each party retains these items. They will not be included as part of any divorce settlement if listed in this document. 

Signatures Witnessed by Notary Public

 The court requires this document to be signed by each party in the relationship. An attorney cannot sign on behalf of his or her client. Furthermore, the signatures must be witnessed by a notary public for the document to be valid.

Property Distinctions

 A prenuptial agreement should outline what is considered marital property and what is to be kept separate. This becomes of great help if the couple decides to divorce in the future or one party passes away. The court adheres to the agreement when dividing the property.

 Speak with an attorney to learn what your state allows and prohibits in a prenuptial agreement. This ensures the document will be valid in the event the relationship dissolves. Protect yourself by ensuring this document is legally drafted. Otherwise, you will have wasted your time and money and will find you weren’t protected as you thought you were. This is never a pleasant realization during a divorce or breakup.