Prenuptial Agreements

1. Writing it without an attorney.

Some people choose to write the prenuptial agreement on their own. This is almost always make a mistake and even small errors can invalidate the prenuptial agreement. Additionally, doing it without an attorney has been known to cause judges to be more skeptical of the validity. They become concerned about the details in how the prenuptial agreement was formed, including whether there is a disparity in education or sophistication between the parties or whether one spouse coerced the other spouse into signing. One mistake can cost hundreds of thousands of dollars. In comparison spending a few thousand to get it done correctly seems like a bargain. Having a lawyer with you in this process is the better route.

2. Starting the process too late.

Frequently, we get calls the week before the wedding where someone wants to get a prenup written or looked over. This does not really give enough time to complete all the requirements of the prenup. When a prenuptial agreement is done on a rush job, the person challenging the prenup in a divorce may have an argument that they were not able to negotiate or make informed decisions.

3. Surprising your fiancé with the prenuptial agreement at the last minute.

If you surprise your spouse with a prenuptial agreement days before the wedding, your spouse has a ready-made argument for invalidating the prenuptial agreement should you ever divorce. Discuss the prenuptial agreement with your spouse well ahead of the wedding, keep them informed of the process, and treat them fairly throughout the process.

4. Not planning for contingencies.

One of the biggest risks with a prenuptial agreement is presuming that you will be in the same financial position or a better financial position at the time of the divorce. Many people commit themselves to financial payouts without asking, “What happens if I don’t actually have the money at the time of the divorce?” We saw this especially in the years after the Great Recession. For instance, in one case, a gentleman committed himself to paying his wife $200,000 at the time of the divorce. But because of the economic downturn, when they did get divorced, he did not have $200,000 to his name. Therefore, he was left with nothing.

These contingencies should be planned for. A good attorney will help you navigate some of these dangers.

5. Not including a choice-of-law provision within the prenuptial agreement.

You may be signing the prenuptial agreement in Arizona, but you could be getting divorced somewhere else. That means that a prenuptial agreement formed in Arizona and valid under Arizona law may not be valid elsewhere. For example, California has a 7-day waiting period from when the draft is first presented to a spouse until it may be signed. Arizona has no such requirement. That means that a prenup signed here where the parties sign shortly after seeing the draft would not be valid under California law.

While many states honor the laws of the state where it was contracted, not all do, and this can weaken your agreement. The absence of a choice of law provision could cause your prenup to be invalidated. The best way to avoid that is to include a provision in your prenuptial agreement for whatever court is assessing its validity to apply Arizona law.

6. Not providing a translator when your spouse speaks English as a second language.

If you are a native English speaker and you are marrying someone who speaks English a second language, providing them the opportunity to use an interpreter is paramount. Some people even choose to have the prenuptial agreement prepared in both languages.

Many times, when a couple divorces, if the spouse who speaks English as a second language does not want to be bound by the prenup, they will argue that they did not understand what they are signing. Having the option of using an interpreter and memorializing that option in writing helps alleviate that concern.

7. Trying to take shortcuts.

Sometimes, when we tell people what the law requires to make a prenuptial agreement valid, they push back. For instance, when they find out they must disclose what each party owns at the time of the marriage, they say to us we already know what is out there—we do not need to prepare a Disclosure Statement. Yes, you do. The law requires it and not doing so could end up invalidating the agreement.

A prenuptial agreement is not where you want to cut corners and to do the things that are required to make a prenuptial agreement valid because again this is not a normal contract; rather, the court is going to look very closely at the prenuptial agreement, its contents, and how it was formed.

8. Including provisions regarding custody.

A prenuptial agreement cannot decide how custody will be awarded in the event of a divorce. Court must assess custody, or legal decision making and parenting time as we call it in Arizona, at the time of the divorce. For that reason, provisions regarding custody are not permitted in prenuptial agreements. Moreover, their inclusion could cause the prenuptial agreement to be invalidated.

9. Not including a severability clause.

A severability clause states that if one portion of the prenuptial agreement is found to be invalid, the remaining portions of the prenuptial agreement will still be valid. This protects against a judge invalidating the entire agreement over one mistake in one section of the agreement.