By: Anastasia Greer, Legal Intern at JUSTLAW
While November through March is peak proposal season, there is no better time to begin prenuptial planning than in the months to follow. On its surface, it may not be the most romantic idea to think about, but it can help you even for a second in the long run.
The real truth is that our world’s divorce rates are hard to overlook. Recent stats show that the current divorce rate in the U.S. is 42.6%. As for the number of marriages, 41%-50% of first-time marriages end in divorce, and this number jumps to 60% for second-time marriages. Think about it this way: smart, proactive couples (and families) plan for the worst case scenarios as part of their everyday lives, but these events (earthquakes, fire, pandemic), are the sort of catastrophic events that have a near 5% or less chance of happening. Given the aforementioned odds of getting divorced, it is in you and your future-spouse’s best interests to at least consider getting a prenup.
BEFORE MARRIAGE. “PRE”-NUPTIAL
By its own definition, a “prenuptial agreement” is a contract that is agreed to and is signed before marriage. Our team at JUSTLAW ideally recommends one to three months before marriage to make prenuptial arrangements. By and large, there is no hard timeline by law in most states in which you should sign your prenuptial agreement – only at a “reasonably early point prior to your wedding.”
Besides timing, you should also be aware of the specific terms for validity that may be required by your state. For example, CA requires at least 7 days to pass after being presented with the prenup until you can sign it. But in states like Texas, there is no minimum number of days required for a prenup to be signed. If you and your spouse put things off to days before the wedding, there may be unforeseen legal implications if you were to try to enforce the agreement in the future. In the worst case, the prenup could be thrown out entirely. Part of this issue may be that a court whether the agreement was made under pressure or coercion in the immediate days leading to your marriage. On the flip side, there may be issues that the agreement was made too far in advance of your marriage such that neither you or your future spouse remember what you agreed to or that circumstances have changed so significantly the prenup is materially affected.
AFTER MARRIAGE.“POST”-NUPTIAL
Brides.com recommends “at least 30 days to pass” before your wedding date to sign your prenup. But, what happens if you and your spouse put the process off altogether and get married without a prenup? Postnups are exactly like they sound and can allow a couple to have protections in the event of divorce, but are less widely accepted state to state. This is partially because they are less widely accepted in the U.S. than prenuptial agreements – and therefore, they are far less likely to be enforced in a court of law. Oftentimes, when married partners enter into a contract, it is presumed that the disadvantaged party was unduly influenced in some way. Another disadvantage to post-nup agreements is more personal. Couples already have trepidations about how to approach these conversations (read more tips here), and there is a real fear that asking for a postnup might not make your partner feel you are committed to the marriage. Another issue with postnups may arise when the assets you started your marriage with have appreciated (or, in some cases depreciated) in value and, in doing so, may make it harder to delineate what property is “shared” or separate between the two of you.
