Executing a prenuptial agreement can be a great way to protect your financial interests, provide clarity regarding finances before getting married, and create a plan for your married life. While the requirements for a valid prenuptial agreement vary by state, here are some things you should consider:
You must provide full financial disclosure, period. Most states require parties to provide full and fair disclosures regarding all of their income, assets, accounts and liabilities. Some states may also require that soon-to-be spouses give any information about any factor that could create a shift in their financial position to each other. Make sure your financial schedule is a complete and accurate detail of your finances.
In order to be enforceable, a prenup must be considered fair. So, what is “fair?” Fair means that the prenuptial agreement cannot be a product of coercion, such as telling the other person to sign it immediately or call off the weeding. (Although, courts have ruled that in some instances, the lack of significant time before a wedding does not rise to the level of coercion.) To be safe, the both you and your fiance should have a sufficient amount of time to review the prenuptial agreement, and the opportunity to obtain legal advice, before being signing it. If there are language barriers, the prenuptial agreement may need to be translated into the native language.
In many states, a prenuptial agreement must be fair at the time that it is entered into, and at the time that it is sought to be enforced. So, the agreement cannot work to impoverish a spouse and make him or her reliant on public benefits in the future.
You are not required to have legal counsel, but most states will look at whether or not you or your future spouse had the opportunity to obtain legal advice. Was there enough time to find an attorney before the wedding? Did you just sign the agreement without even reading it the night before the wedding?
In addition, it is worth having an attorney review your prenuptial agreement with you, if you have questions. If your assets are in any way complex (ie significant family inheritance or business, etc), it may be a good idea to have a lawyer review and revise your agreement.
Some states allow a couple to create a “sunset” provision, which means that the agreement is only valid for a certain amount of time, and expires on a given date. The expiration date is usually a wedding anniversary- like, 10 years or 25 years. Adding a sunset clause is a great idea if you and your fiance have agreed that by X years of marriage, you and your spouse have experienced a lot together, and the agreement should be thrown out the window. (Not literally, but you know what we mean.)