Prenuptial Agreement and Postnuptial Agreements
(The To-Do Before “I Do”)
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You should inform your future spouse that prenups which “promote” divorce are unenforceable. You should speak with competent counsel for information on what “promotes” divorce. Finally, marriage is a legal union of two people. The characterization and distribution of assets and debts are indispensable parts of this beautiful legal equation. That’s something worth discussing and finalizing on paper, isn’t it?
What can go into the Prenup?
A lot of things. Under the Family Code, you can include the following:
- The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located
- The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property
- The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event
- The making of a will, trust, or other arrangement to carry out the provisions of the agreement
- The ownership rights in and disposition of the death benefit from a life insurance policy
- The choice of law governing the construction of the agreement
- Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty
What can't go into the Prenup?
Technically, you can put these provisions in the prenup. But they are unenforceable, so what is the point?
Is there a deadline for entering into a prenup?
Yes. There is a seven (7) calendar day rule for a prenuptial agreement. Ask your attorney.
Do we need lawyers to do a prenup?
Yes, and make sure they are competent lawyers. Remember the first rule: You get what you pay for. Also, please note that if you are including provisions waiving spousal support, you will need to have counsel. Ask your lawyer.
Can we both hire the same lawyer?
No. In a prenup, you are changing the law to be more beneficial to you, which may or may not be beneficial to the other side. Also, a prenup is only used in the event of a divorce – and it is a direct conflict of interest for one lawyer to represent BOTH parties. Both of you need to hire separate lawyers to represent your individual interests.