To many, February is the month to celebrate love. And when there is love, there are thoughts of marriage. And when divorce lawyers think about marriage, they often think about prenuptial agreements. For those unfamiliar with a prenuptial agreement (known as a prenup), it is an agreement between marrying parties that serves to protect each party in the event of divorce or death. 

Many people believe that prenups are only for the uber-wealthy or for those marrying a second, third, or multiple times. But, in fact, a prenup can be for every couple getting married. After all, most people would not drive a car without insurance or refrain from protecting their belongings with homeowners insurance. Well, a prenup is somewhat like an insurance policy to hopefully protect marrying parties from protracted, expensive and emotional litigation if for some reason the marriage does not work out.

As lawyers, we find ourselves being asked to draft prenups and recommend what should and should not be included in the agreement. Before advising clients on what to include in a prenup, we need to educate them on what they should expect if they decide to divorce. This is an odd exercise given that most couples can’t fathom divorce, but it is critical that they understand what could happen if issues arise and the marriage doesn’t last. Along those same lines, parties to a prenup should understand what rights they have to inherit property under relevant state law once they are a spouse and if their partner predeceases them. They may want to contract around those mandated rights by way of the prenup as well.

Once the education part is complete, the drafting begins. Parties entering into a prenup are required to each disclose to each other all of the property they now have. The lawyer drafting the prenup will discuss with the client what assets they want to protect in the event of a divorce. Interim spousal support and alimony can also factor into a prenup. For the lawyer, the most difficult part of drafting the prenup is to try to address potential issues that may occur far into the future. None of us has a crystal ball, but one would be helpful to foresee issues that need to be addressed by the prenup.

After the client is satisfied with the prenup, it is sent to the other side. Each party should have their own counsel. One attorney cannot represent both parties in a prenup even if they believe that the parties agree on all terms. Once the other side gets the prenup, there will probably be some negotiation, just like there is in most contract negotiations. The difficulty with negotiating a prenup is that the parties are excited about getting married and their future together.  As such, it is often uncomfortable for them to discuss what will happen in the event of a divorce. This, however, is important not only to arrive at a final agreement, but we can position it as an additional benefit – it’s a window on how the couple will address tough issues in their marriage. Further, because parties entering into a prenup must talk about finances, it is also a good opportunity to understand each person’s feelings about money. 

While romance and love should get the primary focus in February, when couples start to get serious about planning for the future, we need to be prepared to counsel our clients about and assist with a prenup. And when it is completed and signed, it can be put away, and couples can focus once again on all the great things about love and marriage.

With more than 25 years of experience in the industry, Jennifer Brandt’s practice includes all aspects of family law including divorce, custody, support, alimony, adoption, and guardianship matters in both Pennsylvania and New Jersey. In addition to family law litigation, she also negotiates prenuptial, post-nuptial and cohabitation agreements on behalf of clients. In addition to her busy practice, she’s a well-known legal commentator on national news networks including CNN, CNN Headline News, Fox News Channel, MSNBC, ABC News, Court TV and local and regional television and radio.

If you have a family law issue or would like me to speak about legal issues, you can connect with Ms. Brandt at www.cozen.com.

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