Frequently Asked Questions About Prenuptial Agreements: Part 2

According to recent data, today’s generations are waiting longer before they get married. While that’s often wise, you could date someone for decades and still not know everything about them before you get married. Even if you do, people can change in ways that make couples grow apart. Because no one is immune to marital problems, no one should disregard prenuptial agreements either. While we answered several helpful questions in our last blog about prenuptial agreements, our team at Oxendine Law’s family law practice has more insights to share.

If I Already Have a Child with My Fiancé, Can We Lay Out a Custody Arrangement in Our Prenuptial Agreement?

The short answer is “no.” While parents can negotiate a custody agreement amongst themselves, a family court judge needs to approve it or make the final determination. Judges consider a wide range of factors in custody decisions like each parent’s financial stability, your living situation, criminal records and histories of abuse, and more, including the child’s preference in some cases. All of these factors are likely to change over the course of a marriage. As a result, you won’t be able to decide on a custody arrangement in advance.

Is a Prenuptial Agreement a Binding Document?

Yes, a prenuptial agreement is a legally binding document. That doesn’t mean it is the final word, though. In some circumstances, you can contest a prenuptial agreement’s validity or the validity of individual clauses in your agreement when you’re negotiating a divorce. Do not take that to mean that you should sign a prenuptial agreement that you are unhappy with, planning to contest it if necessary. Prenuptial agreements are generally difficult to contest and are typically upheld, even if they are unfair to one spouse. They’re usually only thrown out if the legal requirements aren’t fully met.

Remember that a prenuptial agreement also doesn’t mean that your divorce settlement is already negotiated and decided. There are always additional matters to discuss and circumstances to address with your divorce attorney in a divorce settlement. Your prenuptial agreement is just a large part of the full puzzle.

When Should I Start the Process of a Prenuptial Agreement?

Don’t wait until the month before your wedding to say, “By the way, let’s sign a prenuptial agreement.” Most couples underestimate how long it can take to draw up the documents, negotiate on the details, and come to a mutual agreement. You also don’t want to put this off until too close to the marriage because it can create more stress than necessary and an opportunity for your spouse to argue that they signed under duress.

As a result, you should start the process with a family law attorney as soon as possible after you get engaged. In fact, if you and a partner have been discussing marriage, it’s a good idea to broach the subject before buying the ring. This is especially true if a prenuptial agreement is a deal-breaker and you would not get married without one.

To some people, prenuptial agreements have negative connotations. They believe that only spouses who don’t trust each other or those who don’t take the marriage seriously will request prenuptial agreements. In fact, neither of these are true. Forgoing a prenuptial agreement can leave both you and your spouse vulnerable to unfair outcomes, and these contracts exhibit that you truly understand the legal and financial implications of marriage. If you would like to start the process for a prenuptial or postnuptial agreement, call our family law attorneys to learn more and set up a meeting.