Women frequently bring us in already drafted agreements for our review and comment. Usually, a drafted agreement – whether it’s a prenuptial agreement, a marital agreement, or a separation agreement – includes some sort of language that says there’s been a full and frank disclosure of the assets and liabilities, and also that each party has had an opportunity to consult counsel with respect to the agreement.
A full and frank disclosure of the assets and liabilities
It says that in order to help make the agreement as strong as possible. Whether or not you actually do seek counsel, it’s likely that you’ll have to sign with the inclusion of some kind of language like this. If there has not been a full and frank disclosure, or if there’s some information about which you are still unsure, now is the time to ask for that information. If your soon-to-be husband won’t provide you with that information, well, that’s…kind of a big hint, I would say, that he doesn’t intend to be particularly straightforward with you.
I talked last week about things that most prenups include, and it’s probably a good idea for you to take a look. It’s a good idea, too, to know as much as you can about how Virginia divorce law works, so that you will be prepared when you see the prenuptial agreement. You’ll want to understand all the ways your proposed prenuptial agreement differs from what the law would give you – so you understand fully what you might be giving up by signing your agreement.
If you’re not sure of the assets and liabilities, now is your time to ask. Before you sign is your time to ask for edits and make revisions.
Each party has had the opportunity to consult counsel
Notice that this says the opportunity to consult counsel – not that each party HAS consulted counsel.
It may be, too, that once you consult with a specific person, or if you’ve retained a specific person to negotiate your prenuptial agreement, that person’s name will go in the agreement. He was represented by so-and-so, and you were represented by (or simply consulted with, whatever the case may be) with so-and-so.
An agreement is stronger if both people entered into it knowing and understanding what it says – though don’t think that means I think that if you don’t consult an attorney and go into court saying later that you don’t understand it will be overturned. Please understand: agreements are virtually NEVER overturned. You should never, ever sign an agreement without understanding that with almost 1000% certainty, your agreement will be upheld. If you agreement wasn’t upheld, which is honestly so virtually impossible as to be almost ridiculous to even consider, you’d probably have to spend tens of thousands of dollars fighting the agreement in court first anyway. Don’t have tens of thousands of dollars to spend fighting a case that you will almost certainly lose? Good – because, in general, it’s a poor investment.
In all seriousness, though, if you’re wondering about an agreement you’ve already signed, it’s a good idea to talk to an attorney. It may very well be that nothing can be done (in fact, that’s a virtual certainty), but you will feel better having asked the question and having received an honest response.
Signed agreements are upheld for all sorts of reasons, but that may be very little comfort to you if you’ve signed an agreement that ended up not being in your best interest. That’s why I mostly hate prenups. Though I understand the theory, I can’t help but feel, after doing this now for so many years, that it’s really inherently unfair that the higher earning spouse has the lesser earning spouse over a proverbial barrel from the very beginning.
“But I’m not a gold digger!”
That’s the response I usually hear to these prenups. “Why shouldn’t I sign? I’m not in it for his/her money.”
Sure, of course not. I don’t think I’ve ever met anyone who told me she was getting married to increase her personal wealth. We crazy Americans generally get married for love, and that’s really the only reason I’ve ever heard.
It’s one thing to say you’re not in it for someone’s money, and it’s quite another to find that, after ten, twenty, or thirty years of marriage, that you’re virtually destitute because nothing that you earned, purchased, or acquired during the marriage is classified as “yours”. It’s quite another to find that you’ve stayed at home for a long period of time, which makes you virtually unemployable (or maybe you’re even disabled, who knows!) but you also can’t ask for any spousal support.
It does not make you a gold digger to need to know that there are some assurances in place to protect you, financially, should the worst happen. No one goes into a marriage hoping for or planning for a divorce, but your spouse – if he or she loves you – should be willing to grant you some peace of mind in the future.
A friend of mine told me just yesterday, “My husband said he wanted a prenup. I said no. …We still got married.” Don’t forget that you DO have bargaining power, even if it doesn’t feel like it. Give him some push back. See where you can get.
And don’t be afraid to walk away.
Can I sign this prenuptial agreement?
Sure. You’re a big girl. You can ultimately make your own decisions. Whether you consult with an attorney or not, whether you’ve read the agreement or not, whatever the case may be – it is certainly your right as a competent adult to decide whether to sign a prenuptial agreement. Even if the attorney with whom you meet tells you it’s a terrible agreement, you can still decide to sign. It’s your call, at the end of the day.
For more information about prenuptial agreements, or to schedule an appointment with one of our attorneys, give our office a call at 757-425-5200.