Ask a Divorce Lawyer Blog Series: A Prenuptial Agreement

Top 5 Questions you may have when considering a Prenuptial Agreement

1. How much does a prenup usually cost?

Unless you retain an attorney who will draft your prenuptial agreement for a flat fee, the attorney fees associated with a prenuptial agreement will be based on the amount of time needed to negotiate the terms of the document and draft the document itself. Therefore, the cost of the prenuptial agreement will depend on the amount of negotiation needed to finalize the terms upon which you and your future spouse agree.

2. Who will draft the prenup and should you have your own attorney review it before signing?

Either party can elect to have his/her attorney draft the prenuptial agreement.  It is important that the other party retains an attorney to review the document and advise the other party as to his/her rights; specifically, the rights that he/she is waiving pursuant to the prenuptial agreement; failure to do so may impact the enforceability of the agreement in the future.

3. Will a prenup protect the assets I acquired before the marriage (real estate, bank accounts, stock options, business)?

A prenuptial agreement can protect assets acquired before or during the marriage.  If you wish to protect assets that you acquired before the marriage, those assets should be properly identified in the agreement (usually in the form of a financial schedule) including the value of the asset and your specific interest in the asset.  The more specific the identification of the asset is the better! That way, at the time of enforcement, it will be more difficult for your future spouse to argue that he/she was not fully informed of the asset to which he/she was waiving rights.

4. If one spouse cheats during the marriage, is the prenup voided?

If there is a term of your prenuptial agreement that states that the Agreement is voided if one spouse cheats during the marriage, then the agreement could be voided if the spouse who is attempting to void the agreement can prove that the other spouse cheated. Absent such a term in the Agreement, cheating does not automatically void a prenuptial agreement.

 5. Can a prenup be modified during the course of the marriage?

Most prenuptial agreements contain a clause that states that the agreement can be modified at any time by agreement of the parties. I suggest that the prenuptial agreement require that any agreement for modification between the parties be made in writing and notarized; that way, there is written proof of the agreed upon modification.

-Jennifer R. Silva, Esq.



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