Do I Need A Lawyer To Make A Prenuptial Agreement?

A prenuptial agreement can help you avoid potential calamities in your marriage, but if you don't do it right, you can cause even more problems. We've got a handy guide that can help you figure out if you should consult an attorney about drafting a prenuptial agreement before you take the plunge. The information provided here is for general information only and should not be used as legal advice.

Checklist For Making A Prenuptial Agreement

  1. Do you need a prenup? Not just for wealthy celebrities, prenuptial agreements have a variety of functions that can help with financial planning as you prepare for your marriage. Talk with your partner and decide if it's right for you.
  2. Are you prepared for your death? Even if you've made a will, it could be invalidated if you get married. A prenuptial agreement can help you solve this problem, and you can draft a codicil to your will as well.
  3. Do you live in a no-fault state? If you don't live in a no-fault state, your divorce may drag on as both parties look to assign blame. A prenup can help you get through the process faster.
  4. Do you understand the terms? Certain elements, like a sunset clause or the inclusion of pre-marriage debts, need to be understood so they don't come back to haunt you in the future.
  5. Can you prove the validity of this agreement? A judge can throw out your agreement if it isn't created and signed according to the law, so it may be wise for both parties to consult an attorney before going forward.

What Are The Ways To End A Marriage?

Method Description Benefits Drawbacks
Divorce Legally ends the marriage either through a divorce settlement agreement or through a judge's decision Divorce is final, and once it's over, both parties can remarry Can drag on for a long time and can be both mentally and emotionally draining
Annulment Marriage is deemed to be invalid and is treated like it never happened Both parties revert to their state prior to the marriage, dividing up assets is not required There are only a few circumstances under which an annulment will be granted
Legal Separation Both parties agree to a marriage separation agreement by which they stay legally married but live separately Allows the couple to continue taking advantage of health insurance or other benefits by staying legally married You're still married, so if you wish to remarry, you'll have to get divorced first and go through the entire divorce process

States With The Highest and Lowest Divorce Rates

Based on 2015 data of divorces per 1,000 married women in all 50 states plus the District of Columbia.

Rank State Divorce Rate
1 Washington, D.C. 29.9
2 Wyoming 27.9
3 Nevada 25.7
4 Arkansas 25.3
5 Alaska 22.7
N/A US Average 16.9
47 New Jersey 12.9
48 Delaware 12.9
49 Rhode Island 12.6
50 Wisconsin 12.4
51 Hawaii 11.1

If I Have No Prenup, What Happens When I Get Divorced?

If you don't have a prenuptial agreement, you'll be subject to the laws in your state. Each state has different laws, and depending on the nature of your relationship with your partner and the amount of marital assets, it could be exceedingly complicated. Generally, you must have established residency in a state in order to file for divorce there. That's one of the reasons prenuptial agreements are popular: they supersede state divorce laws, meaning if you have a valid agreement, you won't be subject to the complexities of the local laws when dividing your assets. It can simplify the process for both parties in the event of a divorce.

What Is A "No-Fault" Divorce?

A "No-fault" divorce simply means a divorce in which the parties do not need to offer grounds for divorce. In some countries, if one person wants to get divorced and the other doesn't, the person wishing to dissolve the marriage has to fight in court in order to be granted the divorce. A lot of people defend these traditions, often on religious grounds because they belong to faiths that oppose divorce, while others welcome the change to a no-fault system. In the United States, a no-fault divorce is a way to exit a marriage without the need for this kind of trial, and helps people move on more quickly. Some states are "True" no-fault states, meaning all divorces are treated as no-fault and the court does not take a position but merely dissolves the marital contract, while others are "optional" no-fault states, meaning you can file for a divorce based on "irreconcilable differences," but can also file for a divorce with cause. If you are looking to file for divorce, it's possible to do so without a prolonged court battle, although difficult discussions like child custody can become contentious regardless of whether both parties want to separate or not.

Which States Are True No-Fault States?

  • California
  • Colorado
  • Florida
  • Hawaii
  • Indiana
  • Iowa
  • Kansas
  • Kentucky
  • Michigan
  • Minnesota
  • Missouri
  • Montana
  • Nebraska
  • Nevada
  • Oregon
  • Washington
  • Wisconsin
  • District of Columbia

Most Expensive States To Get A Divorce

Rank State Divorce Filing Fee Average Hourly Attorney Fee
1 California $435 $402
2 New Jersey $300 $365
3 Connecticut $350 $417
4 Florida $409 $326
5 Pennsylvania $361 $353

What Is An Annulment And How Do I Get One?

An annulment is when the court decides that a marriage is not legally valid, and therefore instead of separating assets like in a divorce, the parties revert to their legal status before the marriage ever took place. There are specific cases, such as fraud, when annulment will be considered, so you can't just ask for an annulment because you both regret the marriage. The laws regarding this procedure differ by state, so consult your state's rules before pursuing an annulment.

The Countries With The Highest Divorce Rates

Rank Country Divorces per Year per 1,000 Inhabitants
1 Maldives 10.97
2 Russia 4.5
3 Aruba 4.4
4 Belarus 4.1
5 United States 3.6
6 Lithuania 3.2
7 Gibraltar 3.0
7 Moldova 3.0
9 Denmark 2.9
9 Cuba 2.9

In Depth

As you prepare for your upcoming wedding, you may have had friends and concerned citizens telling you that you should have a prenup. What exactly do these agreements entail, and do you need to pony up for an attorney to make one for you? Ask yourself these questions to determine if it's a good idea to consult a lawyer about this issue.

Question #1: Do you need a prenup? Sure, your relationship is rock solid, but a lot can happen as time passes, and your hubris can cost you. Mel Gibson and Rupert Murdoch lost fortunes because they didn't anticipate ever getting divorced. Murdoch's next go-around involved a prenup, and it was much easier to end.

Even if you aren't rich or suspicious of your partner's motives, what if it's not your first marriage? What if you both already have children? What if both you and your partner have businesses, assets you share with family members, and own property?

What if you both already have children?

A prenup forces you to take a hard look at your finances, which is important, since financial woes are one of the biggest reasons people end up getting divorced. The prenup isn't just in case your marriage fails; it can actually save your marriage.

And since your prenup will likely override state divorce law, you'll be in a better position to dictate the terms of a divorce, depending on where you live. You never know what can happen, so make sure you do your research. Check out our full guide to prenuptial agreements found right on this page. Scroll beneath this video to read it.

Question #2: are you prepared for your death? Imagine this scenario: you die a month after your wedding, without having updated your will. Your spouse and children could be tangled up in probate court for years to determine who is entitled to your assets. Just because you don't get divorced doesn't mean a prenup can't help with financial decisions.

Just because you don't get divorced doesn't mean a prenup can't help with financial decisions.

Anna Nicole Smith was married without a prenuptial agreement, and ended up in court fighting her late husband's heirs. After she died, her estate continued to fight in court for its right to his estate. Both partners were gone, but the conflict outlived them. Consider having difficult conversations now and putting it in writing so your legacy isn't a battle between your loved ones.

Question #3: do you live in a no-fault state? Different states treat divorce very differently. In some states, divorce is considered "no-fault" as a default, which means that the judge will not take a position as to who is responsible, merely carrying out the divorce and dividing the assets. In other states, this isn't the case, and divorces can drag on, sometimes for years.

A Manhattan couple spent seven years in court arguing over a contentious end to their 19-year marriage. The wife's share of the assets was ultimately reduced after she badmouthed her husband in the press, causing his business to lose clients, and reminding us that it's best to watch what you say because it can get you in trouble.

A Manhattan couple spent seven years in court arguing over a contentious end to their 19-year marriage.

If you have a prenuptial agreement, you can get through the process more quickly, but it's important to know how the laws work before you proceed. Check out our full guide found right on this page, just beneath this video.

Question #4: do you understand the terms? Not all agreements are designed to last forever, and your choices now will affect the future. Many prenups contain a "Sunset clause," which states that the agreement expires after a certain date.

That's the situation former General Electric CEO Jack Welch found himself in when he and his wife Jane Beasley got divorced after their prenup had expired. She was possibly entitled to half his fortune, but they ended up settling, depriving the rest of us more juicy details about their extravagant lifestyle.

That's the situation former General Electric CEO Jack Welch found himself in when he and his wife Jane Beasley got divorced after their prenup had expired.

Chris Rock was in a similar situation, with an expired agreement that not only meant he had to pay a lot in the divorce, but also meant that the financial break-up would be extremely complicated, negating the planning done in the first place. If you don't know how your contract works, you can't take advantage of it. Some who realize they have sunset clauses may try to rush to get divorced before they kick in, or wait them out to get more money.

We aren't lawyers, and this isn't legal advice, but if you're waiting a couple years to get divorced just so you can cash in, that probably isn't too healthy. Make sure you know what you're doing beforehand.

Question #5: can you prove the validity of this agreement? Prenups can be a good idea, but if they aren't done properly, they're useless. A judge can later rule your agreement invalid if you don't disclose all your assets, if one partner feels coerced, or if it isn't properly filed.

A judge can later rule your agreement invalid if you don't disclose all your assets, if one partner feels coerced, or if it isn't properly filed.

That last item wasn't noted by Barry Bonds, who had a prenuptial agreement with his wife that would have kept her from tapping into his vast fortune. But she didn't have an attorney present when it was signed, so it was ruled invalid.

An even stranger story involves famed director Steven Spielberg and his divorce from Amy Irving. They had a prenup, but it was written on a bar napkin with no attorneys present. A judge threw it out, so he had to cough up $100 million.

That's where an attorney can help. Having someone draft the agreement for you, or at least look over it before you sign, can ensure that it's valid and that your time making it isn't wasted. If you were unsure of the answers to any of these questions, or confused about the law in your area, it's a good idea to find a lawyer and read up on the process more. Don't forget to check out our full guide to prenuptial agreements which you can find right beneath this video.

If you were unsure of the answers to any of these questions, or confused about the law in your area, it's a good idea to find a lawyer and read up on the process more.

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