To prenup or not to prenup? It is a good question

There are few more sensitive topics in family law than that of a prenuptial agreement. As its name suggests, it occurs prior to the nuptials, and yet its topic is the division of assets as a result of a divorce. This is conceptually a difficult idea to wrap one’s head around, but that difficulty pales in comparison to the difficulty of emotionally comprehending dividing and protecting your assets before you promise to remain married “’til death do you part.”

And not everyone needs a prenuptial. If you and your spouse come from modest means, and neither of your parents have substantial assets that you potentially could inherit, there may be no “separate” assets that need protection.

On the other hand, if you and your future spouse have children from previous marriages and some accumulation of your own wealth, a prenuptial agreement could be very valuable, and frankly, not unexpected in today’s societal expectations of the longevity of marriages.

But one thing that is a requirement is having your own attorney during the discussions prior to signing a prenuptial agreement. Danger signs for enforceability of a prenup include an agreement that was signed hours or days before the wedding and where the party with the greater financial worth only had their attorney drafting the agreement.

Because you could be signing away substantial legal rights, you always want your own, independent counsel providing advice, participating in the negotiations, and drafting of the agreement. Moreover, these discussions should occur months, if possible, before the wedding.

And if you are the party who will benefit most, ensuring all of the proper formalities are observed, as they make it more likely that a court will enforce your agreement as valid.

Wsj.com, “Is a Prenup a Must for Most Couples?” March 1, 2015