My fiance wants me to sign a prenup. What should I do?

If you’re headed towards your happily ever after and suddenly your fiancé starts talking to you about prenuptial agreements, you’re probably feeling concerned. Whatever happened to the “what’s mine is yours” philosophy? Isn’t that what marriage is about?
Marriage is about a lot of different things to a lot of different people. Prenuptial agreements are fairly standard in some circles and almost entirely unheard of in others. It’s one of the trickier areas of the law to discuss because the effects of a well drafted prenuptial agreement can be so wide-ranging. Like with separation agreements in divorce, there are very few limits in contract law beyond the creativity of the drafter!

What is a prenuptial agreement?

A prenuptial agreement, or prenup, as they’re sometimes called, is a legal contract between two parties who intend to marry. Its main job is to set forth exactly what would happen, and exactly how property would be divided, in the event of a divorce.
Contrary to popular belief, the main point of a prenup is not to save or protect a person’s assets from BEFORE they were married; under Virginia law, this property is already protected. Separate property, or property that a person owned, inherited, or purchased prior to marriage, belongs to one party separately, and doesn’t become a marital asset just because you get married. If it started as separate, it stays separate.
An asset can be separate and marital all at once, though. In that case, we’d call it a hybrid asset—which just means it’s both marital and separate. Let’s give an example. If you bought a house prior to marriage, got married and then made mortgage payments on it using marital money, it’s a hybrid asset. Whatever you put in prior to marriage is still yours separately, including the down payment, but whatever payments you made using marital money are marital and subject to division.
A prenuptial agreement protects, usually, whatever you earn together AFTER marriage. Sometimes, a prenup also discusses how things will be handled in the event of a divorce.

What kinds of things can a prenuptial agreement do?

A prenuptial agreement, like pretty much any legal contract between two adults, can do a lot of things. When we draft contracts, like prenups, marital agreements, and separation agreements, we always tell our clients that there are really no limitations except the creativity of the drafters. We can put lots of things in there (obviously, as long as they’re no illegal or rise to the level of unconscionability—more on that later) and, if we can get the other side to sign, it’s all good.
Prenuptial agreements can do all sorts of things. They can set forth how your marital property will be divided, they can specify how much spousal support you’ll receive (or that you won’t receive ANY spousal support), and they can even handle custody and visitation (though you should also remember that custody and visitation are always modifiable based on a material change in circumstances). Some prenups specify different things depending on how long the marriage lasted or whether children were born from the union.
Prenuptial agreements can do all sorts of things, which is both good and bad. It means that you go into the marriage with your eyes wide open, with both of you having no doubt how you stand in the event that something goes wrong. It may be unromantic, but it’s also exceedingly practical. It means no one gets involved expecting something that then, later on, they don’t get.
Still, prenuptial agreements change things. If you think you can sign one and then it won’t matter when, years down the road, you’re headed towards divorce, you’re wrong. That is exactly what they are designed to do, and you should absolutely, positively know what you’re getting into before you sign an agreement. Read it, understand it, have it reviewed by an attorney—because you can be sure that it’s going to matter later, if things don’t work out.

Should I sign it?

That’s a question only you can answer. Before you sign it, though, you should definitely take it to an attorney and have it reviewed. Remember that contracts are generally part of a negotiation. Just because he presents you with a contract that says one thing doesn’t mean that you can’t make a counteroffer, or reject certain terms that he has included. Will he still sign it? Will it be good enough for him? I don’t know, but I do know that it’s not worth just signing away your rights without trying to negotiate something better for yourself.
Make sure you’ve read and understand the agreement before you sign. It sounds like a little thing, but it’s not, and you’d probably be surprised how many people we see who have signed contracts without reading them. You can do that with some things, like when iTunes asks you to agree to a whole list of conditions before you buy a song, but you can’t disregard the fine print when it comes to your prenuptial agreement. If you do, you’ll likely live to regret it, and that’s not a place where I’d like any of my clients to be.
Read it, understand it, have it reviewed, and make counteroffers. It’s allowed. It’s a negotiation. You’re part of this marriage, too, and you deserve to have a say in your prenuptial agreement. Don’t understand something? Want to know if it’s normal? Ask. Get all your questions answered before you sign—because, once you sign it, there’s no going back. (Again, more on that in a minute.)

Can I have my agreement overturned later? What does it mean that an agreement is unconscionable?

It’s pretty unlikely. Judges don’t go around overturning contracts. If you think about it a minute, you’ll probably start to understand why.
Judges like when private people settle things themselves. It means that the judges don’t have to do it themselves, which matters. Most courts have super duper backed up dockets; in some places, it can take months to get a hearing date. It may sound ridiculous, but it’s actually pretty normal. It happens all the time. So, when people settle things between themselves, they don’t have to get on the docket, which leaves the judge free to decide only the things that private parties couldn’t settle between themselves.
Not only that, but there’s typically a greater degree of satisfaction with the result from people who have settled their issues themselves. Leaving your issues to the judge to decide when, frankly, he’s the person who knows the least about them, is uncomfortable for a lot of people. It’s like leaving it up to chance almost; who knows how the judge is going to rule?
Judges like contracts, and try to encourage them. It would be discouraging to people wanting to enter into contracts if they knew that contracts were easily overturned. Who would want to do anything that they were contractually obligated to do if they knew they could just get around it later? No one! So, basically, in order to preserve the contract and encourage people to enter into them, contracts have become something that courts really just don’t touch. If you sign an agreement, you’ll be held to it. That way, everyone else knows that they can safely enter into and rely on contracts they’ve negotiated and signed. It’s a matter of public policy.
Judges will overturn agreements, but it’s a super difficult thing to do. To get your agreement overturned, you have to prove two things (1) that your agreement is unconscionable, which means that it is so bad that no reasonable person would have signed it, and (2) that you were under duress—basically, that you were forced into doing it.
To prove unconsionability, your contract would, basically, have to give the other side everything and you absolutely nothing. If you’ve received even one thing, then the court would consider that a bargained-for benefit. Like, that you traded custody of your kids in exchange for the kitchen appliances. It sounds ridiculous, right? But the truth is that real people make seemingly lopsided agreements on purpose all the time, and the court won’t take away from their ability to enter into those types of agreements. Who is to say what’s important to someone anyway? You’re free to bargain for whatever benefit is important to you, regardless of whether that benefit seems “worth it” to someone else. So, as you can probably already tell, it’s really difficult to prove that an agreement is so bad that no reasonable person would have signed it.
To prove duress, it’s also fairly difficult. Unless he literally held a gun to your head and threatened to physically harm you or your children, it’s probably not duress. Making vague verbal threats or psychologically bullying you into signing isn’t enough on its own. It helps, but it’s not enough. Duress is pretty extreme.
And, to top it all off, you have to prove BOTH unconscionability and duress. It’s probably safe to say it’s nearly impossible.
The bottom line? Know what you’re signing before you sign.
Prenuptial agreements are tricky because they expect you to envision what things will look like at some undetermined point in the future. Will you need spousal support then? Where will you be living? Will you have quit your job and decided to stay at home? What kind of disadvantages can come up in the intervening years? It’s difficult to say, but it’s always a good idea to get advice from a professional before you make a move that you’ll regret. Prenups aren’t bad in and of themselves, but you’ll want to take some serious steps to protect yourself.
For more information about prenups, to have your proposed prenuptial agreement reviewed, or to have an attorney draft a prenuptial agreement on your behalf, give our office a call at (757) 425-5200.

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