I always recommend that marrying couples sign a pre-marital (pre-nuptial) agreement before they get married. When you’ve been around as long as I have and seen as many nasty divorces as I have, you will understand why: couples with a pre-marital (or post-marital) agreement simply have an easier time getting divorced.
It’s quicker because there are fewer disputes about who gets what, etc. Read more about pre- and post-marital agreements here.
Suppose you already have a pre-marital agreement in place, but now you want to make adjustments. Let’s take a look at exactly what that process will entail.
How to Make Changes to Your Pre-Nuptial / Pre-Marital Agreement
Essentially, you can do one of two things:
- Scrap the pre-marital agreement and have a post-marital agreement drafted to cover all the things that may have changed since you got married; or
- Create addendums to the pre-marital agreement. This will work as long as the addendums are executed with the same formality as the original document.
By “formality,” I mean that the document needs to be written and signed, and both parties must have their own separate attorneys review the document to ensure that it is enforceable. It is also important to again do financial disclosures to identify any material changes in either party’s financial situation since the marriage.
Ensure Your Pre-Marital / Pre-Nuptial Agreement is Enforceable
I’d like to share a little war story. About 20 years ago, a young woman and her older fiancé decided to go to Vegas to get married. The day before they were set to exchange vows, he surprised her by taking her to his attorney’s office and handing her a 20-page pre-marital agreement. He told her, “If you don’t sign this, we’re not getting married tomorrow.”
Of course, she signed it. She had family flying in from all over the country to attend the wedding and had spent thousands of dollars.
Fast-forward 20 years, and they’re now ready to get divorced. According to the terms of the pre-marital agreement, she’s entitled to a 1985 car that doesn’t exist anymore and that’s about it. Meanwhile, the husband is worth approximately $30 million… and he’s dead-set that his wife of two decades will get virtually nothing. He offered her something like $30,000.
In this case, I argued that the pre-marital agreement was invalid for many reasons: she was coerced into signing, she didn’t understand what she was doing, she didn’t have an opportunity to review the document with an attorney, there weren’t adequate disclosures, etc.
In the end, we settled the case for close to $3 million because the judge found that the pre-marital agreement was unenforceable. The wife hadn’t had a fair shake, and the judge knew that.
So, how do you create a pre-marital agreement that is enforceable 10, 20, 30 or more years down the line?
Get a Pre-Nuptial / Pre-Marital Agreement in Place
To make sure the pre-marital agreement is enforceable, there are a few steps we need to take.
Draft the document with full disclosure. This is to make sure the neither side can come back and say, “Well, if I had known that my spouse had $300,000 hidden away, I wouldn’t have signed this.” Both sides need to share all their financial information. If in doubt, err on the side of disclosure.
Each side needs an attorney. Some couples ask me, “Please, we don’t want to spend a lot of money, can you just represent both of us?” That won’t work if you want to ensure that your pre-marital agreement will hold up in Court. It’s far too easy for one side to claim that the attorney favored the other side, which would invalidate the document. I like for both sides to retain an attorney and have the attorney review the agreement so there is no argument of, “I didn’t know what it meant.”
I feel so strongly about both sides having an attorney that I refuse to do a pre- or post-marital agreement if the other side doesn’t have an attorney. I want a clean conscience that this document will be enforceable years down the line. I even refuse to recommend an attorney for the other side. There is too much risk that, during a future challenge, the other side will argue that I have a relationship with that attorney, so he/she didn’t do an adequate review.
Get Your Prenup Done Right the First Time
If you’re getting ready to create a post-marital agreement, or make addendums to your pre-marital agreement, do yourself a huge favor and get it done right. You could potentially save yourself a lot of time, money, and aggravation down the line by doing things correctly.
Remember: there must always be an attorney representing each side. Spend an hour or so with a lawyer to understand what you’re doing, so that neither side can come back and say, “This modification should not be enforceable,” and invalidate your efforts.
If you would like assistance with making changes to your pre-marital or post-marital agreement, let’s talk. Call our office today at 303-449-1873 for a complimentary consultation and we’ll discuss how the process will work for you.