Sam recently called me up and asked if I could mediate his prenuptial agreement. “Sure,” I told him. “But you will also each need a lawyer to review the draft.”
“Why?” He asked. “We’ve already talked about everything. We agree. All you need to do is write it down.”
I understood why he bristled. Who wants to complicate things? Who wants lawyers (or the state, for that matter) to be involved with private, family agreements?
Prenups are funny kinds of documents. Most contracts are agreements for an event that is about to happen (like a house sale or even a divorce). But a prenuptial agreement may lie in a drawer for 25 years before anyone pulls it out to review it.
And when a couple is getting divorced, it is not unusual that one person wants to enforce the prenup and the other person wants to say it isn’t really valid. Courts will look carefully at agreements made between spouses (or intended spouses) because there is an extra element of responsibility to each other. This means that you have to be extra careful that all of your i’s are dotted and your t’s are crossed. In my mind, if you are going to invest the time, expense – and, frankly, the stress – of preparing the prenup, you might as well make sure it is enforceable.
So what are the requirements of a prenuptial agreement?
- It must be in writing. Oral agreements will not be upheld.
- You must disclose all of your assets and liabilities. Every last one. There must be no fraud.
- It must not be the result of fraud or duress. It must be clear that both parties signed it knowingly and voluntarily, that they understood it fully and had time to consider its implications, and that they believed it was fair.
- It must be created and signed before the marriage. Timing is important. If you sign it on your way to the church, it might seem like it was signed under duress. If you sign it a month before, the assumption will be that each party had a chance to change their mind.
- The terms must not be unconscionable !
So Sam, go ahead – mediate that prenup! But make sure you speak to a mediation-friendly reviewing attorney before you sign on the dotted line.