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How to get a prenup?

Updated: Dec 30, 2021

There are 4 steps to getting a prenup: (1) talk to your significant other, (2) hire a lawyer, (3) encourage your significant other to get legal advice, and (4) sign the prenup.


Talk to your significant other


Let your partner know that you want a prenup and why you want it. Good communication and mutual understanding is essential to a healthy relationship. The best prenups are those that both partners want.


When you sit down to talk with your partner, answer the following questions:

  • Will we be having joint accounts or separate accounts during marriage?

  • At divorce, do we want to keep our own accounts?

  • How do you want to split the joint accounts: 50/50 or based on contribution?

  • Will one of us pay for the mortgage or major improvements on the other's house?

  • Should that create equity for the non-owner?

  • Should the owner reimburse the non-owner for the contribution during the marriage?

  • Should the reimbursement occur only if a divorce happens?

  • How will we share custody of pets?

  • What about certain furniture or items that are sentimental to both of us and cannot be divided?

  • Will there be any financial expectations during marriage?

  • Will both of us be expected to save for retirement or can both of us do whatever we want with our money so long as we accept the risks and consequences of those decisions?

  • Do we want to have kids?

  • Will one of us stay home to raise the children?

  • Should the parent that stays home be compensated at divorce? How and how much?

There's a lot to discuss. If you'd like, you can find additional questions in our blog post titled "Should I get a prenup?". The more in depth you get, the better you'll understand each other, and the more fair and amicable your prenup will be.


Hire a lawyer


While you can find prenup templates online and can use handy document-generating programs like LegalZoom, hiring a lawyer is your best chance of getting a prenup that actually protects you and your property. Often, templets do not offer you all of the options and flexibility that your agreement requires, and it’s quite possible that the way they are written could result in the prenup being invalidated in the future.


When choosing a lawyer, pick someone who is not pushy. Some lawyers have a tendency of forcing what they think is fair on their clients, resulting in a prenup that does not reflect the agreement you reached with your partner. A lawyer should give you advice on whether your agreement could be detrimental to you and should provide you with a risk/benefit analysis as well as solutions to mitigate some of that risk, but a lawyer should not bully you into an agreement that you do not want. It’s your life, not the lawyer’s.


Communicate to your lawyer your prenup goals and the agreement you reached with your partner. Expect the lawyer to ask additional questions or bring up options that you might not have considered. Be open to new ideas, but be firm if those ideas do not align with your wishes.


When the prenup is completed, ask the lawyer to walk you through the prenup term by term, explaining the legal jargon and giving you examples of how the terms would play out in different scenarios. Ask lots of questions. Make sure you understand the prenup. If the lawyer cannot explain the prenup to you in detail, then ask for your money back and hire someone new. A prenup that can’t be explained by a lawyer who drafted it is a prenup you do not want to be signing.



Encourage your significant other to get legal advice


By law, your partner must have an opportunity to consult with a lawyer before singing a prenup. While your partner is not required to hire a lawyer to review the prenup, you should encourage your partner to do so. A prenup that is reviewed by a second lawyer is more likely to be upheld in court if challenged than a prenup that was signed without your partner getting independent legal advice.


Once hired, the second lawyer will explain the prenup to your partner and will give advice on whether to make changes and/or sign the prenup. Then one of five things happens:


(1) The lawyer respects your partner's wishes and doesn't attempt to make any changes to the prenup.


(2) The lawyer wants to include or modify certain language in the prenup. These are often cosmetic changes that don't impact the substance of your prenup. Your partner's lawyer will communicate that to your lawyer who will advise you on the changes and likely will incorporate them in the prenup.


(3) The lawyer spots problems in how the prenup is written and suggests changes to ensure that the prenup accurately reflects the prenup goals and agreement. These are not cosmetic changes. This typically happens when a prenup attorney reviews a prenup written by a general practice lawyer or a family lawyer who isn't in the business of writing prenups.


(4) The lawyer thinks of new and creative prenup terms, suggests them to your partner, and if the two of you like the changes, requests your lawyer to incorporate that in your prenup.


OR


(5) The lawyer assumes that it's their job to protect your partner from you and will pressure your partner into changing the prenup terms and/or not signing the prenup at all. Often, these lawyers become aggressive, try to cause problems between the two of you, and use their position of power to intimidate your partner.


There is no cause for concern unless the fifth scenario happens.


Good to Know: Lawyers do not need to sign the prenup. If your partner's lawyer refuses to sign a prenup unless your partner changes the prenup to the lawyer's liking, then just don't get their signature. If that lawyer explained the prenup and advised your partner, then that's enough. Your partner, just like you, are free to sign any contract over a lawyer's objection.


Sign the prenup


Once you and your partner are satisfied that the prenup properly reflects your agreement and goals, you will need to sign the prenup in front of 2 witnesses and a notary public. You can choose who those people will be. You do not need to sign the prenup at the lawyer’s office.


After signing and notarizing the prenup, make digital copies of the agreement and store the original somewhere where you can find it in the future. You don’t need to file the document with the court or take any special actions.


Once signed, you can resume focusing on the more exciting things: preparing for the wedding!

 

This blog and the tips in it are general information and not legal advice. If you want legal advice, book a free consultation!