Even individuals of modest means can benefit from a properly drawn pre-nuptial agreement. If you come into the marriage with separate assets – as might well be the case if this is not your first marriage – then having a formal agreement that identifies those assets and makes known your intent that they remain your sole and separate property is really a good idea.
The problem with pre-nups is that they are often contested. Indeed, many lawyers believe that it is malpractice not to contest a pre-nuptial agreement that unfairly prejudices the client. The best way to avoid a contest is to ensure that the agreement provides for a fair exchange. If one side gets nothing, you can almost guarantee that there will be litigation.
Your pre-nuptial agreement will only be enforceable if it was entered into voluntarily. At a minimum, that means that your betrothed must have at least seven days to consider the agreement , two or three months is better, that she/he must be represented by independent counsel, and that you must make full disclosures of your income, assets and liabilities.
While pre-nuptial agreements are “generally enforceable”, waivers or limitations on spousal support is a big unknown. If the agreement you made is unconscionable at the time you seek to enforce it – regardless of whether it was reasonable when made – your agreement will likely not be enforced. If your agreement waives spousal support, you would be well advised to include as an alternative a limitation on spousal support in the event the waiver is deemed unenforceable, i.e., a dollar range for monthly support for a specified, but limited, period of time.
While unconscionable provisions can be severed, a court may find it difficult to sever a spousal support waiver while enforcing a property split. Thus, it might be helpful to explain in the recital portion of the agreement that you want the property split enforced even if the spousal support waiver is not.
Your agreement should also consider the unforeseen. For example, your agreement could state that the parties agree to enforce the spousal support waiver even if the supported spouse becomes disabled, or even if the marriage lasts 20 years, or even if the couple has six children. Recitals of this nature could convince a court to enforce a provision that it would otherwise reject.
So, what does all of this cost? Pre-nuptial agreements are tricky documents, and it helps to have experienced counsel draft them. Because too many result in litigation, attorneys preparing pre-nups must consider potential long-term liability, they must be prepared to be deposed and involved in court appearances without compensation many years later, and they must save their records forever. As a result, this potential expense must be included in the up-front cost of preparing the pre-nuptial agreement. While there are likely some firms that will prepare a simple agreement for $2,500, most would charge between $5,000 and $10,000, with costs going up from there as the complexity of the agreement and/or the value of the estate at risk increases.
[Every case is different. Nothing in this post or on this site is, nor is it intended to be, legal advice. Please contact me to obtain legal advice regarding your particular situation. Past achievements are not a predictor of future results, and do not constitute a guarantee, warranty, or prediction regarding the outcome that you can expect. No attorney-client relationship can be or will be established until attorney and client have met, discussed the client’s specific needs and expectations and the attorney’s current fee structure, and attorney and client have both signed a written fee agreement.]