Here comes the bride . . . and the prenuptial agreement?

Jessica Woll, managing partner of Woll & Woll, P.C., a divorce and family law practice specializing in complex family law issues, has more than 20 years of experience in helping couples navigate the painful process of divorce. In the midst of wedding season, Woll, who blogs and tweets @DivorceWisdom, says her experience guides her belief that the pros and cons of signing a prenuptial agreement should be fully considered along with the guest list and flower arrangements.

 A prenuptial agreement is a contract between two people that becomes valid upon the marriage of the couple and can include anything they want, as long as the terms of the contract are legal. For example, some couples include mandatory couples’ counseling, a financial penalty provision in the event the marriage ends due to one’s infidelity, or sunset clauses that invalidate the agreement in part or in total if the marriage lasts beyond a certain period of time.

 “A prenup has the potential to take away the fear of a bad breakup by allowing couples to decide in advance how they would be most comfortable dividing up their assets if the marriage dissolves,” Woll said. “Some believe that taking the mystery out of a potential divorce will enable the couple to focus on the marriage rather than the prospect of a breakup.”

 In order for a prenuptial agreement to be valid, each individual must disclose all of their assets and liabilities.  Children from previous relationships must also be taken into consideration in order to protect their rights.

 But should you have one? According to Woll, a well-crafted contract, where the division of assets and debts is unambiguous, provides the following benefits:

 • Requires both future spouses to “come clean” about personal finances and address any potential issues

• Protects an individual’s assets that were accumulated prior to the marriage

• Dictates how to handle certain assets that may be acquired during the marriage

• Protects the children’s rights to a portion of an individual estate or inheritance

• Saves a great deal of money in the event of a divorce

• Can avoid divorce “horror stories” and dragged out disputes

• Provides security for couples entering into a second or subsequent marriage

But a prenuptial agreement is not for everyone, according to Woll.  “Over the years, I have worked with several couples that found the business of a marriage contract so distasteful, they called the wedding off as a result of the fiancé’s insistence on a prenup,” she said. “Some engaged couples are of the attitude, if you are going to marry me, you should trust me without a pre-wedding contract.”

As a result, Woll has found the following to be negatives to having a prenuptial contract:

• Takes the romance out of the engagement and even the relationship

• May lead to premarital discord, especially if only one individual wants the agreement

• The court may not enforce the contract in the event of divorce

• A challenged prenuptial agreement during a divorce action can prove expensive, defeating the reason the couple obtained a prenup in the first place. The challenger must demonstrate the agreement was 1.)
obtained through fraud, duress or mistake, or misrepresentation or non-disclosure of material facts; 2.) the agreement was unconscionable; or, 3.) that it would be unreasonable to enforce the terms of the agreement because so much has changed in the parties’ lives since it was entered into.

Woll believes that the decision for having a prenuptial agreement is personal and depends upon each couple’s individual circumstances, with the exception of two situations.  “If you have children from a prior relationship, a prenuptial agreement is important to protect your children,” Woll said. “Similarly, if you are involved in a family business, you may want to protect your extended family by entering into one as well.”