Couples can draft two different types of marital agreements. Engaged couples can establish prenuptial agreements before they officially get married. Married couples can establish postnuptial agreements that address many of the same considerations as a prenuptial agreement.
The goal of a marital agreement is to protect spouses from messy divorces, help standardize their expectations for the marriage and establish clear terms about the property and income of the spouses. Couples generally need to be careful to ensure that they follow best practices when drafting prenuptial or postnuptial agreements. The three considerations below are of the utmost importance for the long-term validity of an agreement.
Offering something valuable to each spouse
One of the biggest mistakes people make when negotiating prenuptial or postnuptial agreements is to focus solely on their own protection. They worry so much about preserving certain assets as their separate property or excluding certain income from the marital estate that they don’t bother to ask their partners what terms they want for their own protection. A one-sided agreement may not hold up in family court during a divorce. If the prenuptial or postnuptial agreement only protects one spouse, the courts may determine that it is an unconscionable agreement and may set it aside if the spouses later divorce.
Ensuring proper legal review
Another common mistake spouses might make when drafting a prenuptial or postnuptial agreement is to use one attorney for the whole process. A lawyer generally has a fiduciary duty to act in the best interests of their clients. However, one lawyer cannot reasonably have that same duty to both spouses. The best marital agreements have undergone review by lawyers representing both spouses. That approach helps ensure that each spouse protects their interests and neither can claim they were unaware of the terms of the agreement.
Including the right details
Prenuptial and postnuptial agreements are an excellent place to protect assets as separate property. They allow spouses an opportunity to clarify how they intend to divide their resources if they divorce. They can even include penalty clauses if there are concerns about gambling, substance abuse or infidelity. That being said, spouses need to be careful not to include too many personal details in marital agreements. Contracts that focus on factors like weight gain or the frequency of marital intimacy can be more difficult to enforce. The inclusion of too many personal details might lead to complications later when spouses decide it is time to end a marriage.
Those preparing to establish a prenuptial or postnuptial agreement may need help throughout that process. Learning about what to include and what to avoid in such agreements can help people draft documents that help protect their marriages and reduce the risk of an acrimonious divorce, should the need to go separate ways develop.