If you’ve started thinking about marriage, you might also have given thought to drafting a prenuptial agreement. If so, you wouldn’t be alone. Prenups have become increasingly common as more Millennials have started using them.
Business Insider recently explored the prenup’s sudden rise. It found there were two main reasons. Millennials have been marrying later in life, meaning they commonly have more assets to protect. And many of them have experience with their parents’ divorces. They understand the contract’s practical value.
The courts won’t enforce a bad prenup
Since more people are getting prenups, it’s more important than ever to understand the difference between a good and bad one. A good prenup will hold up in court and can help you protect your assets and your dreams. For example, if you own a business, a prenup may help you keep it together in the event of a divorce. But a bad prenup might not be worth the paper it’s printed on. The court might simply toss it out.
What could prompt the court to toss out your prenup? According to Florida law, the court might decide the agreement is not enforceable if:
- Either party did not enter the agreement voluntarily
- Either party can show they were pressured or coerced into signing
- The terms are unconscionable
In Florida, there are two different ways a court might find your prenup unconscionable. It might deem the contract unconscionable if it’s clear that one party had no way of properly understanding, appreciating or negotiating the terms. It could also decide the contract is unconscionable if the terms favor one side too strongly. In other words, it’s important for a prenup to be reasonably fair.
What should you do to make sure your prenup is valid?
The odds are that if you’re thinking of a prenup, it’s to make sure your business, home or retirement account doesn’t fall apart in the case of divorce. A good prenup may be able to protect one or more of these assets, so you’ll want to take all the proper steps, including:
- Make sure you and your partner both work with your own lawyers. This helps avoid any hint that there was a conflict of interest.
- Provide a complete and detailed picture of your financial situation, including all your assets and debts.
- Only cover such topics as allowed under Florida law. Don’t address child support or draft any terms that could violate public policy or criminal codes.
- Make sure the terms are reasonable. You don’t need to aim for a fifty-fifty split, but the terms should be fair. An experienced family law attorney can help you understand what the court considers reasonable.
- Allow your partner time to review the contract. If you draft and sign the contract right before your wedding, it’s more likely to look like coercion.
It’s worth noting that a good prenup can do more than protect your existing assets. It might also address things such as gifts, inheritance, alimony and the growing values of businesses or investments.
Can a prenup do more than protect your assets?
For a long time, young couples avoided talking about prenups. They considered it taboo to invoke the idea of divorce. But as Millennials know, those couples didn’t all stay married. Had they created prenups, they might have saved themselves from much of the pain of divorce.
They might have saved themselves from other suffering, too. The process of drafting a prenup forces couples to talk about their finances and goals openly. That can help them get on the same page and avoid later fights about money. Given how often fights about money contribute to divorces, it’s possible that drafting a good prenup could make your marriage stronger.