When Should You Create a Prenuptial Agreement?
A well-drafted prenuptial agreement will clarify how assets and liabilities will be handled if a couple divorces or if one spouse dies. Without a prenuptial agreement, spouses will be subject to Florida’s laws, which call for an equitable division of marital property and what is defined as marital property. Many people with high net worth seek to protect themselves in the event of divorce or death with a prenuptial agreement. But when is the right time to create one?
Start Early
Creating a solid prenuptial agreement requires considerable planning. There are two dates to keep in mind:
- When you start thinking about a prenuptial agreement.
- When you tell your fiancé you want them to sign a prenuptial agreement before marriage.
These events do not have to happen at the same time. In fact, we recommend meeting with a lawyer to discuss generally whether a prenuptial agreement is right for you in a private consultation. You might decide that you do not want one, and there is no reason to tip off your partner to the fact that you considered one. We can meet in a confidential setting to discuss these agreements and answer your questions.
Another reason to start early is that you must disclose financial information to your partner before signing the agreement. These disclosures must be thorough. You cannot generally describe what you own and owe; you need to pull together the actual financial records.
As to when to first broach that you want to sign a prenuptial agreement with your partner: It is up to you when to bring up this topic with your partner. You know your relationship better than we do. Some of our clients expect resistance from their partner.
Legally, you should not spring a prenuptial agreement on your partner the night before the wedding. That could result in a finding that your partner was coerced into signing the agreement, which would invalidate the prenuptial agreement it its entirety.
Furthermore, your future spouse should hire their own lawyer to review the agreement and negotiate changes, if needed. This requires giving them time. As a general rule of thumb, you should start planning for a prenuptial agreement a year before the marriage, if you can.
It’s Not Too Late: Create a Postnuptial Agreement
If you did not have a prenuptial agreement in place when you married, then you should consider drafting a postnuptial agreement. This agreement is similar to a prenuptial agreement, except that a couple signs a postnuptial agreement after marriage.
A postnuptial agreement can address all of the issues that are covered in a prenuptial agreement:
- Determining what is identified as marital and separate property
- Identifying how to divide marital property upon divorce
- Whether one spouse will waive alimony and/or the elective share
- Life insurance benefits
- Identifying business interests
Your spouse has a stronger hand in negotiations when it comes to postnuptial agreements, however, because they could initiate divorce if they are unhappy with what you propose. Still, our firm has helped many couples draft postnuptial agreements to address one or more of the above issues.
Talk to Our Firm
The lawyers at Hamilton O’Neill have drafted many agreements for our clients. We bring a keen eye to detail during negotiations and always do what is right for our clients. Call to speak with a Miami prenuptial and postnuptial agreement lawyer.