Avoid These Common Mistakes with Prenups

Getting a prenup is the most valuable tool for you and your spouse as you two embark on your wedded journey together. I’ve touted the essential benefits of prenuptial agreements, so here, we’ll unravel common pitfalls I’ve seen clients fall into when getting a prenup.

Don’t Wait ‘Til the Last Minute

Start the prenup discussion now. Even if you’re not yet engaged, but have inklings of getting married, begin the prenup talks as soon as possible. This is not a conversation that you can fast forward. In California, there’s even a time restriction.

The 7-Day Rule

As of January 1, 2020, California’s Family Code section 1615(c)(2)(B), requires the prenuptial agreement to be in its final form at least seven (7) calendar days before even signing it. This means that if you’re planning your wedding for a Saturday night, the agreement must be absolutely final a week before on the prior Thursday — and that’s if you’re ok with signing a prenup the day before your wedding! Fact is, you’ll need to start the process at least 1 to 2 months before the wedding, just to make sure you have it in its final form before this deadline!

In addition, if you’re planning on getting married out of town, you’ll want to factor in travel time so that the agreement can be signed before you jet off for that fairytale wedding. In other words, if you’re planning to present that prenup to your partner even a week before the wedding — think again!

In fact, I recommend that you begin talking about a prenup with your partner while you’re still dating, prior to any engagement, and to have an agreement drafted at least 3 to 4 months before the wedding. This way, you avoid putting you and your partner through unnecessary stress, as well as undue duress that may invalidate the agreement in the case of a divorce. It will be a bad experience for you and your family when it’s rushed and not well thought out. I’ve seen it far too many times.

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Don’t Draft A Prenup Without Talking to Your Partner First

Imagine coming home to your fiancé and being asked to review a contract about money and marriage without any prior heads up. Besides feeling blindsided, you’d probably feel left out, and that your partner is trying to pull a fast one. The first draft of a prenup shouldn’t feel like a one-sided offer to be negotiated as a business deal.

The power of prenups is that they enable you and your partner to converse and collaborate on building the guidelines of your marriage together. But even before you start talking about prenups, talk about finances first. Walk through this comprehensive guide to talking money with your partner and you’ll gain the mindset and momentum needed to draft an agreement with your attorney that reflects what you both want.

Don’t Involve Your Family

Keep your family out of it. This is an agreement between you and your partner. This is about your life and your marriage. Your parents have their own views on marriage and may have preconceived misconceptions about prenups. Involving them will not only negatively affect your relationship with your partner but also their relationship with your partner‘s family.

Also, don’t blame your family for wanting to get a prenup. Take ownership of your decision with the understanding that you’re championing the long-term success of your partnership and marriage, above all else. Pointing fingers only creates resentment and deters from the truth — getting a prenup is not a fear-based obligation, it’s a foundation for a healthy marriage.

Don’t Skim Through Your Agreement

Take the time to carefully read the drafted agreement from your attorney before it’s sent to your partner. Besides grammatical mistakes or typos, there may be provisions that you overlooked, or were mistakenly included due to a miscommunication with your attorney.

Presenting a prenuptial agreement that’s different from what you discussed with your partner can cause serious, and sometimes irreversible, problems. It’s important to stay aligned, detail-oriented, and transparent throughout the prenup process right from the start. The last thing you want is to go into full damage control mode trying to explain that what your attorney drafted is not really what you want prior to your wedding.

Hire the Right Attorney

Prenups are sensitive by nature. You don’t want an aggressive divorce lawyer on your side pressuring your partner and their counsel to make concessions or to treat your prenuptial agreement like a litigated divorce case. This is the time to find an attorney that is solution-minded and collaborative because the process thrives with a team effort. The end result is a mutually-beneficial agreement that you both want and are happy to sign.

Also, make sure you’re hiring a family law attorney with experience drafting prenuptial agreements. Your business, bankruptcy, real estate, or estate planning attorney may tell you that they can draft an agreement for you, but this may add to the stress and costs of drafting a prenuptial agreement. Since most non-family law attorneys do not fully understand the intricacies of family law and drafting a prenup, it will take unnecessary time, money, and effort to educate that attorney on how the prenup process actually works, and what is actually allowed to go into the agreement. In addition, there are extremely important formalities and rules overseeing the timing of the drafting, finalization, and signing of a prenup. If your attorney doesn’t know about these rules, you’re exposing yourself and your partner to an agreement that may be invalidated due to an avoidable technicality.

You Get What You Pay For

You’ll find many attorneys that offer to draft prenups with a low flat or hourly rate. That probably means that they won’t spend much time on your agreement at all because it simply doesn’t make financial sense for them. They’re most likely looking to make a quick buck or a high volume and quick churn of clients.

Often, they’re simply changing names in the same prenup template, over and over again. Thinking of a prenup as a quick, templated process undermines the very reason it exists — to be a tool that serves and protects the specific needs of the parties involved. You may think that you’re saving money now, but you’ll pay for it tenfold down the line if it’s either invalidated (since it was drafted without much thought), or did not do what you needed it to do at the appropriate time.

Preparing a prenuptial agreement is an important process that you should invest in, so find a lawyer that takes the time to understand your and your partner’s goals and what you want to achieve from the prenup. This is your chance to work with a legal professional to craft a custom agreement that caters to your individual needs and the shared goals of the loving partnership. If you have any questions about prenups or any of the topics covered in this article, connect with me — I’d be happy to talk through things with you.

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