Prospective clients frequently call to tell me they want a “simple” prenuptial agreement, asking me how cheaply one can be prepared and telling me that their fiancé will sign whatever is put before them and they will not get an attorney. Most people considering a prenup have only a general idea of what they really want in an agreement, but do not understand the importance of the basic steps needed to properly prepare, negotiate, and finalize a prenuptial agreement so that it will have a greater chance of surviving a later challenge in court. Many people do not want to consider the possibility of a failed marriage even before they say “I do.”
Divorce laws in Missouri can be complex and often do not fully protect premarital, gifted, or inherited property from claims that they are marital property or have a marital component to them. Many people believe that if property is titled or listed in their name alone, then it is their separate property and will be free from claims of being marital property. This is not always the case. To make matters more complicated and contrary to what many people expect, marital property includes income during the marriage from wages, bonuses, interest, dividends, distributions from pass-through entities, and many other sources.
As a result of these principles and a lack of understanding about the law, many people wanting a prenuptial agreement will come to realize that there is rarely such thing as a simple one, yet they may still want to cut corners. However, a lack of careful attention to objectives, details, drafting, and disclosure, can lead to major problems with the agreement should the marriage go south.
As for the cost of preparing one, there are no short cuts. Marital property laws are complex. The need for a full and complete disclosure of property, debts, income, and expectancies such as inheritances and rights under trusts is crucial. Lawyers need time and careful planning to understand their client’s objectives, for drafting, providing adequate advice and explanations, for negotiations, and to allow for timely signing.
Everyone wants to save money, but one attorney cannot represent both parties to these agreements. While the law in Missouri has yet to require that both parties have an attorney, good practice dictates that it can be a serious mistake to not insist that one’s fiancé have their own attorney. A common claim seeking to avoid an agreement is that the person did not understand what they were signing.
In sum, the preparation of these agreements involves careful planning and a commitment of time to do things right and to make sure all issues are considered in the final draft.
If you are thinking about having a prenuptial agreement, or if you believe your fiancé is going to ask for one, do not delay in seeing an attorney experienced in the preparation of these agreements. The attorneys at Paule, Camazine & Blumenthal, P.C. can assist you with what is clearly something that is not very romantic but often necessary and advisable in today’s world.