One question I often get is, “How can I get an ironclad prenup?”
An ironclad prenup is one so well-crafted it will stand up in a divorce proceeding no matter what.
I’ll level with you. There’s no such thing as an ironclad prenup.
Prenuptial agreements are essential for establishing financial goals and boundaries in your marriage. The issue is sometimes, people incorporate nebulous, confusing, or straight-up illegal language into their prenups, creating problems as time passes.
Additionally, rules can change (and have changed), impacting the validity of certain clauses.
So what can be done?
Take every precaution to ensure your prenup is valid in the long run, not just in the here and now.
Here’s how to make it happen.
1. Know Your State’s Laws
A prenuptial agreement is only valid if it complies with your state’s requirements.
For example, in California, the “7-day rule” dictates that a prenuptial agreement must be in writing and in its final form seven calendar days before signing. This helps prevent hasty decision-making.
Additionally, no-fault divorce states like California do not allow for infidelity clauses since these are counteractive to the spirit of no-fault divorce. So, if you include a clause that punishes one spouse for cheating in California, that may be grounds for invalidating your prenup altogether.
Do your homework to ensure none of your prenup’s stipulations directly violate your state’s laws. Better yet, consult an experienced prenup attorney who knows the ins and outs of prenups in your state.
2. Be Transparent
It’s important to practice transparency in your relationship from the outset, especially when creating a legally sound prenup.
Be open, complete, and accurate about your assets and liabilities, including real estate, investments, income, and debt. In California, lying about assets and liabilities is grounds for invalidating your prenuptial agreement during a divorce trial.
3. Be Wary Of Lifestyle Clauses
We’ve already touched on the danger of the infidelity clause, but that’s just one of many so-called “lifestyle clauses” that can be problematic.
Lifestyle clauses relate to the behavioral aspects of your marriage, such as what kind of church your children will attend or who is responsible for cooking dinner each night.
You can already see how things might get dicey during divorce.
One of the hallmarks of a secure prenuptial agreement is that it’s fair and balanced for BOTH parties. When you add lifestyle clauses, there’s more room for gray areas regarding what is fair and just.
If the court finds that one or more clauses are unbalanced or “unconscionable,” they are more likely to invalidate the prenuptial agreement.
If you add lifestyle clauses to your prenup, make sure the language is direct, concise, and beneficial to both parties with approval by an attorney.
4. Incorporate Fair & Balanced Financial Clauses
The same goes for financial clauses. A prenuptial agreement is only useful if both partners feel good about how their money will be spent or protected, so ensure the financial benefits are proportionate.
A court can and will invalidate a prenup if the financial terms are blatantly skewed towards one party.
5. Check In Regularly With Your Partner
Creating a prenuptial agreement should be a collaborative process between you and your spouse-to-be, and it continues to be a living agreement throughout your marriage. The best way to make sure you’re on the same page about the language you’re including is to take regular temperature checks with each other.
This helps avoid conflict in the future. The court will invalidate your prenup if there’s any evidence it was signed under duress. Open communication = less room for misunderstanding.
Check out my Talking Money Guide for a list of questions to ask one another to inspire productive discussions and craft a prenup tailored to your goals and desires as a couple.
6. Work With An Experienced Prenup Attorney
Chances are this is your first time creating a prenuptial agreement. Even if it’s not, prenups aren’t exactly something most people are well-versed in unless they do it for a living.
Enter the prenup attorney. These professionals have made it their business to know the state-specific requirements for a legally sound prenup.
Avoid working with your attorneys who are NOT prenup attorneys, like your estate or business law attorney. They may be good at their respective fields but will not understand the nuances and details of crafting a strong, customized premarital agreement.
Working with an experienced prenup attorney brings peace of mind and avoids legal flubs.
The Takeaway: A Little Caution Goes A Long Way
“Ironclad prenups” do not exist, but creating a solid, legally sound, and mutually beneficial prenup agreement is possible.
To start the prenup process, book a consultation call with me.
As a prenup attorney, I’ve spent years learning the ins and outs of California prenup law and working hard to keep your prenup fair, balanced, and beneficial.