Tips to Make Your Prenup Enforceable

Divorce financial analyst JoAnne HoltBy JoAnne C. Holt,  Divorce financial analyst

Send me an e-mail or visit my website holtcpafirm.com.

You survive the first divorce with about half of what you previously owned and swear you will never get married again. Then a few years go by and you’ve met another woman and have overcome the bitter taste of your last divorce.

Your heart is swept away and you have decided to get married again, but you are smarter now and will get your new spouse to sign a pre-nuptial (or ante-nuptial) agreement. Let’s assume both of you hire attorneys and both of you sign the agreement right before you are married.

Remember, your pre-nuptial agreement is only as good as your compliance with it. There are also other considerations to be aware of if you want it to be enforceable.

I am speaking only from experience with Florida cases and preface my comments here with a request that you please consult with an attorney to discuss the legal aspects of my observations and applicability in your home state.

First, many agreements have been set aside for being signed on the eve of the wedding or even a month before.  Please listen to your attorney if they say you must sign the agreement with at least X number of days prior to the wedding.

Making sure the other spouse doesn’t sign the prenup until the last minute can easily be achieved. Simply do not set the date of the wedding until the agreement is signed.

Many times the best of intentions are foiled by the attorney for the opposing spouse delaying the signing with minor changes going back and forth. The date of the marriage is set and people have purchased plane tickets and now the heat is on; do you lose your new fiancé by trying to postpone or do you negotiate up to the night before the wedding? Most men negotiate up to the last minute, not realizing they are putting the agreement at risk.

Next, you are required to have “full and complete” financial disclosure by both parties. This does not mean letting someone look at your last tax return.

I have seen many agreements set aside because both parties had not fully complied. Yes, both parties. Just because you have the lion’s share of the assets doesn’t mean your spouse does not have to detail her finances.

I have literally seen a case where the spouse who didn’t have much used the fact she had not disclosed properly as a reason to get the agreement set aside. Then there is the matter of proving you gave full financial disclosure.

I recommend that you have your separate CPAs prepare personal financial statements, complete with footnotes to attach as an exhibit to your pre-nuptial agreement. While this will cost you a little more, it could save you thousands and thousands later. This is additional evidence that you made reasonable efforts to fully account for and disclose all assets and liabilities.

During your marriage, make sure you consult with your family law attorney when purchasing or selling property as well as for any other major financial decision. This will keep you abreast of new case law as well as a reminder of the requirements in the agreement.

If you sign the agreement and don’t refer to it for five years, you are bound to forget what you should be doing to keep your assets protected.

 

JoAnne C. Holt is a Florida-based CPA, certified family mediator, and certified divorce financial analyst. She also founded www.standbyhousing.com, an organization that presents alternative housing solutions to fathers going through a divorce. Her columns on finances and divorce run monthly on DadsDivorce.com. Send her an e-mail or visit her website holtcpafirm.com.

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