Prenuptial Agreements – Divorce Planning

More and more couples have come to realize the frailty of life and the frailty of marriage. Beyond protecting assets that are currently owned by one or both future spouses, prenuptial agreements are increasingly used as a “playbook” for the marriage itself, defining specific roles and responsibilities that each spouse will play in the anticipated union.

When considering a prenuptial agreement, make sure you work with an attorney who has the experience and knowledge to protect your interests and handle the delicate negotiations appropriately.

Negotiating a prenuptial agreement presents unique challenges which are not present in typical contract negotiations. The most common scenario involves a large disparity of either income, assets, or both between the future newlyweds. No matter how delicately one party raises the subject of a prenuptial agreement, the other party being asked to sign a prenuptial agreement will eventually imagine hearing the following statement echoing in the background, “Honey, I love you, I just don’t trust you.” With more than 40 combined years of experience negotiating prenuptial agreements, our attorneys have the tact, knowledge and skill required to overcome the special challenges presented by this most difficult of representations.

There are four (4) essential elements to a valid prenuptial agreement.

• Timing — The closer to the date of the anticipated wedding, the greater the risk that issues such as duress, overreaching and undue influence will be raised. As a general rule, Mr. Hayes advises his clients to have the prenuptial agreement executed before the wedding invitations go out.
• Disclosure — Both parties to a prenuptial agreement must make a full and fair disclosure of their respective assets, debts and income. This disclosure is usually accomplished by each party filling out a detailed financial statement and providing a copy of their tax returns.
• Independent Counsel — Both parties must enter a prenuptial agreement knowledgeably and voluntarily. The best way to satisfy both requirements is to ensure that each party has their own lawyer.
• Fairness — An agreement to marry creates a fiduciary relationship between the parties and creates a duty on each to treat the other fairly and not take advantage of any disparity of assets, income or both which may be present.

When divorce is imminent, there are steps that can be taken to prepare yourself both financially and emotionally for the divorce process to come. As we often tells our clients, “Divorce is just as much of a commitment as was the marriage it is ending”. The divorce process can be financially and emotionally draining and, when it is possible, it is best to prepare oneself both financially and emotionally for this commitment. Our attorneys have more than 40 years of combined experience from which to draw to assist people contemplating beginning a divorce.

It is not uncommon for one spouse in a marriage to be “in the dark” when it comes to the marital finances. The challenge of where to begin to gather financial information can seem overwhelming. To assist clients in their financial search, we provides a Financial Document Checklist that helps keep clients on track and make the search for financial information more focused and meaningful. It is important to begin to gather financial information as soon as the idea of a divorce enters your head. In addition, an endless number of issues will begin to arise at the start of every divorce, such as the propriety of segregating funds from the other party, closing joint accounts, canceling or freezing credit accounts, signing joint tax returns, and remaining in one residence, among many others. It is critical to speak with an experienced lawyer before making any of these decisions and we have years of experience guiding people through the divorce process from start to finish.

Speak with an experienced lawyer about a prenuptial or postnuptial agreement by calling 615-256-2602 in Nashville, Tennessee, or by sending a message here.