The Prenup Does Not Address Debt
If your prenuptial agreement fails to address debt, that is problematic. Most people focus on assets and income when negotiating a prenup, but it is critical to address debt and other financially related obligations. If one or both spouses are obligated to pay student loans or have children from a previous marriage or relationship, if they have alimony or child support obligations, or if they have tax debt (including past due taxes or taxes one of them may owe for forgivable loans received from an employer), then the assignment of these obligations needs to be addressed in the prenuptial agreement.
You don’t want to wake up 20 years from now and find out that all your marital savings were being used to pay premarital debts while all your spouse’s premarital assets were safely maintained for their own retirement plan.
At the very least be sure to ask these questions before signing.
There Is No Consideration About How You Will Live Day To Day
If one of the spouses has significant assets, it is important for the couple to discuss their expectations about how they will live day to day once married. Does the prenuptial agreement provide them with sufficient support and assets if the plan is that one spouse will not work? Does it include a financial plan if the marriage doesn’t work, or will the non-working spouse be left in the dust with no funds? If the prenuptial agreement is so lopsided that it only safeguards one person, then this is a red flag that should stop someone from signing.
For example, if one spouse plans to forgo their career to raise children, that person should negotiate for spousal support that would enable them to keep the same lifestyle the couple enjoyed together for the rest of their lives, living separately, even after the children are grown. If you are the monied spouse and want someone to be there by your side for the rest of your years, you may want to enter into an agreement to pay that long-term spousal support. Why? Because the marriage itself may just go more smoothly.
Most Important: Set Yourself Up For Success
When an individual preparing for divorce brings me their prenuptial agreement, I often ask why they signed it to begin with. Usually, they tell me that they didn’t expect to be in this situation, that the love of their life told them it would be “fine,” and that “there was plenty of money and not to worry,” or that they were presented with the prenup just weeks before walking down the aisle and felt they had no choice other than to sign.
Sometimes, they were told by an attorney not to sign the prenup, but they signed it anyway.
And now they deeply regret that choice.
Let this be a cautionary tale. Marriage can be blissful, but remember, it is also a financial and legal partnership. Don’t forget to treat it that way. The prenuptial agreement is a legally binding contract. It may set the stage for your happily ever after. With or without your spouse.
Lisa Zeiderman, Esq., is a divorce and family law attorney based in New York.