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Can we draft our own Prenuptial Agreement?

Why do you need the help of lawyers when drafting or deciding whether to sign a Prenuptial Agreement?

If you want to end up with a clear and binding premarital agreement (one that you and your fiancée understand), you should get help from a good lawyer. In fact, you will need two lawyers -- one for each of you -- one to draft the agreement and the other to review the agreement with your fiancée. But before your lawyers start drafting the prenuptial agreement, you and your fiancée should decide on its essential terms. Start by answering a few questions. Even if you answer "no" to all of these questions, you may still benefit from having a prenuptial agreement. You can use it as a financial plan for your marriage; not just a plan for what happens if your marriage ends.

  • Do you own any real estate?

  • Do you own more than $50,000 worth of assets other than real estate?

  • Do you own all or part of a business?

  • Do you currently earn a salary of more than $100,000 per year?

  • Have you earned more than one year's worth of retirement benefits or do you have other valuable employment benefits, such as profit sharing or stock options?

  • Does one of you plan to pursue an advanced degree while the other works?

  • Will all or part of your estate go to someone other than your spouse when you die?

Jot down on a piece of paper a list of the things you might want to include in a prenuptial agreement, such as identifying separate property, decisions about how you will handle money and property while you are married, whether alimony will be paid or waived in the event of divorce, retirement benefit agreements, and agreements about how you want to leave property at your death

Why You Need Help From Lawyers

There are good reasons why seeking legal advice when making a prenup is advantageous. In fact, each party to the prenup should get help from a different lawyer. Here's why.

Varying State Laws

The laws governing marriage contracts vary tremendously from state to state. You can certainly do some of your own research to find out general information on your state's laws relating to prenups. But, if you don't want to invest your time learning the ins and outs of your state's matrimonial laws, a lawyer who knows the intricacies of those laws will be an important resource. The lawyer can help you put together an agreement that meets state requirements and says what you want it to say.

Independent Legal Advice

This explains the desirability of having one lawyer, but why two? Prenuptial agreements are still scrutinized by the courts, sometimes very closely. If you want your agreement to pass muster, having independent lawyers advise each of you can be critical. While most courts don't require that each party to a prenup have a lawyer, the absence of separate independent advice for each party is always a red flag to a judge.

On a practical note, having separate legal advisers can help you and your fiancée craft a lasting agreement that you both understand and that doesn't leave either of you feeling that you've been taken advantage of.

Decide What You Want Before Seeing a Lawyer

That said, it's best not to ask your lawyers to start writing up a draft or final agreement until the two of you have settled on its essential terms. You should put those terms in writing -- i.e. make a list or prepare a written outline. Here's a sample list of some of the issues you may want included in your prenuptial agreement:

  • separate vs. joint property

  • estate planning issues, such as providing for children from prior marriages or leaving family property

  • how to handle a separate business

  • retirement benefits

  • responsibility for or nonresponsibility for the other person's debts

  • who gets what, including alimony, if you separate or divorce

  • procedures for filing tax returns, including allocating income and deductions

  • who pays household bills -- and how

  • whether to have joint bank accounts and, if so, how to manage them

  • agreements about specific purchases or projects, such as buying a house together or starting up a business

  • how you will handle credit card charges

  • agreements to set aside money for savings

  • agreements for putting each other through college or professional school

  • provisions for a surviving spouse in your estate plan or through life insurance coverage

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