When couples come in to get a prenuptial agreement, they are about to get married very soon.  The prenup process can be stressful enough as it is without an attorney coming in to stir the pot with thoughts of divorce and other nasty situations.  I’ve dealt with some great prenup attorneys who were able to walk the line when it comes to talking about divorce and also keeping the couple’s upcoming marriage in mind.  Then I’ve dealt with some not-so-great attorneys that inject strife and mistrust into the process.

Believe it or not, I’ve heard attorneys say such things as “he’s trying to cheat you,” “this is an unfair agreement and you’re getting nothing,” “why are you even getting married if you’re not gaining anything,” etc.  The list goes on and on.

It’s very important when picking a prenup attorney to know whether the attorney can take off their divorce hat and put on their marriage hat.  And if you find out halfway through that they have their divorce hat on, it is not too late (usually) to hire a different lawyer.

A fellow (non-legal) blogger Audrey Pollnow has another take on the purpose of a prenup.  She wants to use it to deter the possibility of divorce in the future.

Since I don’t accept the possibility of divorce, my prenup will be designed specifically to make divorce as painful and awful as possible.  All assets will be seized by the state.  I will own my husband’s right arm, left leg, and right ear, and he will own mine.  Because of this, divorce would necessarily entail a sundering of limbs.  

I highly doubt that a prenup written in Massachusetts or any other state would be upheld if it actually contained provisions as Audrey would suggest, but it is an interesting twist on the idea of prenup and what we really use it for.

When a prenuptial agreement is drafted in Massachusetts, the agreement must be “fair.”  But in order for the prenuptial agreement to be valid when you need to use it (i.e. divorce), it must also be fair at the time of divorce.  That is what is meant by the second look.  You look at it once to determine if it’s fair and then you look at it again at the time of divorce to determine if it’s still fair.

You often hear of the term “sunset clause” when it comes to contracts and prenups.  So what are they?  Simply put, it is a paragraph of legal language that is included in the prenup that lays out when the prenup will no longer be valid.

Why would anyone want that?

Well, you might foresee a date in the future when you feel you would not need a prenup anymore.  Some people have an initial fear that their marriage might end in divorce rather quickly.  So to hedge against that, they ask their fiancée for a prenup.  However, they feel that if they had been married for a sufficiently long period of time (say 25 years), then a prenup is no longer necessary.

One type of common sunset clause provides that the prenuptial agreement between the parties will expire in x number of years.  So once you hit that magical year, it immediately goes away.  Another common way to draft a sunset clause is to phase it out over time.  So for example, some people make allowances for how to divide property and deal with alimony when you hit certain milestones in the marriage – such as 10 years, 15 years, 20 years and 25 years.  So at each of those stages, more and more of the prenup becomes void or more and more of the property becomes joint/marital property until after the last stage, the prenup is entirely phased out.

Including a sunset clause is not for everyone but it is something to consider when speaking with your fiancée about the different items that you would like to be included.  Speak with your lawyer about how to best structure the language.

A new book by authors Paula Szuchman and Jenny Anderson, Spousonomics: Using Economics to Master Love, Marriage, and Dirty Dishes is a must read for newly weds and those living together for the first time.  The book posits that using economic principles, it is not always the best way to split up chores 50/50.  Instead, people should do what they’re good at and what they’re most efficient at.  And if that means that one person takes on a bit more responsibility than the other, then so be in.

A few of the other nuggets of wisdom include (taken from http://shine.yahoo.com/event/financiallyfit/economics-the-key-to-happy-couples-division-of-labor-2455003/):

1. Have an honest talk about what tasks each of you is better at. Applying “comparative advantage,” make an honest assessment of which chores you truly do better and faster than your spouse. It may mean switching tasks that were set either along stereotypical lines or based on what you like doing over others. (Though, really, who “likes” doing the dishes daily?) As Szuchman says, marriage is all about allocating scarce resources—”limited time, limited libido, limited money, and the question is, ‘how do you allocate it all well?’ ”

2. Gain new specializations. If you love being outside but have never mowed a lawn, it may be time to master the mower. If you spend tons of leisure time on the computer, maybe bill-paying should fall under your marital to-do’s. The lesson, Szuchman says, is that sometimes you have to each invest time learning new tasks to shake up a division of labor that’s not working. Be flexible.

3. Let go of perfection. Or what you think perfection is. If your husband takes over the laundry, for example, don’t refold what he folds. And if your wife is stacking the dishwasher every night, don’t rearrange where she puts everything. “Once you divide it all this way, it’s really important to let go,” Szuchman said.

4. Fair doesn’t have to mean equal. Whether it’s because of comparative advantage or because one spouse works out of the home and the other at home, many couples will not have an even-split division of labor. Sometimes one partner is just looking for some give, an extra break from their responsibilities, for married life to feel more balanced. “Life need not be a fifty/fifty split for each person to be happy,” Szuchman and Anderson write. “It could be sixty/forty, or seventy/thirty, or even ninety-nine/one, depending on the people, the situation, and the willingness to put away the calculator and give and take based on what really works best rather than what we think should work best.”

5. If kids come along…. Once you’ve ironed out all disagreements/agreements of splitting chores between the two of you, get ready for some new battles over what chores the kids should do, and how to make sure they follow through on their ‘assignments.’ Number 3 applies here all over again. Don’t remake your tot’s bed once he’s old enough to include it in his daily to-do’s. That sends the wrong message.

Prenups are no longer just about protecting assets, it’s also about shielding debt:

Prenups are becoming more common among younger couples. And the contracts aren’t just about protecting individual assets and divvying up property in case of a divorce. More young adults also are using prenups to shield themselves from a partner’s debt and to even the field when one spouse shoulders the financial burden early in the marriage.

The contracts help young couples have a frank talk about their finances, which often aren’t discussed before marriage, says Gabriel Cheong, a divorce attorney with Infinity Law Group in Quincy, Mass.

“You want to be secure in the idea that you did this so long ago that you planned for your future out of love, rather than out of hate when you’re getting a divorce,” he says.

Since more and more people are starting their own business in a down economy, business investors and partners are requiring that their partners sign prenups before getting married to protect and business.

Many young adults, unable to find a job after graduation or laid off because they were the last hired, are returning to school. And that usually means taking on more debt. Mr. Cheong says he often sees situations where one spouse works full-time — and supports a young family — while the other goes to school full-time.

For the full article: Saying ‘Yes’ to a Prenup

On average, the shortest prenup I draft will be around 20 pages, give or take.  The reason why it’s so long is simple – it has to be legally binding.

Think about it in another context.  When you buy a house, why are closing documents so long?  Why don’t you simply say in one piece of paper that you’re accepting a house from someone, and on a second piece of paper that you own the bank x amount of money?  But we all know that’s not how it works.  There are a lot of disclosures and details that needs to be flushed out in a real estate closing.  Now, that’s just 1 house – 1 asset.  In a prenuptial agreement, we are considering ALL the assets of BOTH the future husband the wife.  Why then, would a prenuptial agreement be any shorter than real estate closing documents for a single house?

I hope that puts it all in context as to why prenuptial agreements must be so lengthy.

Just a quick note that it doesn’t matter where you were married or where you have your prenuptial agreement drafted, it matters where you get divorced and whether the divorcing country recognizes your prenuptial agreement.

via International Family Law

The information below is for informational purposes only. It must be checked by legal counsel in the local jurisdiction before being acted on.

AUSTRALIA
Prenuptial agreements, known as “binding financial agreements,” first became enforceable in Australia in 2000 with the enactment of the Family Law Amendment Act 2000. Part VIIIA of the Family Law Act sets forth particular provisions concerning the oversight to be given to such agreements by family law solicitors. For a binding financial agreement to be binding it must be in writing signed by both parties; be given (the original) to one party with a copy given to the other; specify the extent of any spousal maintenance provided; and state that both parties have received specified independent legal advice and annex a certificate of an independent lawyer to that effect.

An agreement will not be binding if it was obtained by fraud, was made under duress, by mistake, by virtue of undue influence, if it is impracticable for all or part of the agreement to be carried out, if there has been a material change in the care of a child leading to hardship, if a party engaged in unconscionable conduct when making the agreement, such as where one spouse is at a disadvantage and the agreement runs contrary to good conscience.

AUSTRIA
Austria is a party to the Hague Convention on the Law Applicable to Matrimonial Property Regimes, which specifically authorizes prenuptial agreements.

BAHAMAS
Prenuptial agreements are not enforceable in the Bahamas but courts might take them into account in determining the intention of the parties. In general, the Bahamas will follow the English approach.

BRAZIL
Prenuptial agreements are enforceable in Brazil. See Article 256, II of the Civil Code.

CANADA
Prenuptial agreements are enforceable in Canada. Courts in Ontario and other common law provinces of Canada previously considered marriage contracts to be contrary to public policy and unenforceable, but the 1978 Family Law Reform Act (now continued in the Family Law Act) specifically authorizes marriage contracts. The Family Law Act provides that a court may set aside a provision for support or a waiver of the right to support in a marriage contract and may determine and order support even though the contract contains an express provision excluding the application of this section:

• If the provision for support or the waiver of the right to support results in unconscionable circumstances;
• If the provision for support is in favor of, or the waiver is by or on behalf of, a dependant who qualifies for allowance for support out of public money; or
• If there is default in the payment of support under the contract or agreement at the time the application is made.

As a result, a provision in the marriage contract either limiting or precluding a claim for future support is very much subject to the discretion of the court at the time an application for support is made.

Even as to assets, prenuptial agreements are not insurmountable. A Canadian court might modify or even ignore an agreements in some circumstances, such as if an unforeseen, financially disabling or devastating event has occurred. Some provinces expressly provide that their courts may set aside a prenuptial agreement if it is “unfair.” Thus, Section 51 of British Columbia’s Family Relations Act states that even if there is a valid marriage contract, the court may re-divide the assets on the basis of fairness

CHINA
Prenuptial agreements are now enforceable in China. Article 19 of the 2001 Marriage Law specifies that:

“So far as the property acquired during the period in which they are under contract of marriage and the prenuptial property are concerned, husband and wife may agree as to whether they should be in the separate possession, joint possession or partly separate possession and partly joint possession. The agreement shall be made in writing. The provisions of Articles 17 and 18 of this Law shall apply to the absence of such an agreement or to a vague one.

The agreement reached between the husband and wife on the property acquired during the period in which they are under contract of marriage and on the prenuptial property is binding on both parties.

If husband and wife agree, as is known to the third party, to separately possess their property acquired during their marriage life, the debt owed by the husband or the wife to any other person, shall be paid off out of the property separately possessed by him or her.”

ENGLAND and WALES
In England and Wales, the courts have traditionally given little weight to a prenuptial agreement, and have viewed the enforcement of prenuptial agreements as being against public policy. Thus, in F v. F (Ancillary Relief: Substantial Assets), (1995) 2 F.L.R. 45, Thorpe J. stated that a prenuptial agreement must be “of very little significance” since the distribution of assets must take place in accordance with statutory formula and “cannot be much influenced by contractual terms.” Likewise, in N v. N (Jurisdiction: Pre-Nuptial Agreement) (1999) 2 FLR 745 the court refused to enforce even a portion of a prenuptial agreement in which the husband had agreed that, in the event of a divorce, he would take all steps religiously necessary to allow his wife to obtain a “get,” allowing her to remarry under Jewish law. The court held that “even if one divides up the antenuptial agreement in this case, and looks at the individual clauses separately, one cannot, in my judgment avoid the fundamental proposition that each is part of an agreement entered into before marriage to regulate the parties’ affairs in the event of divorce. The public policy argument, therefore, continues to apply.” [754f].

However, the traditional view is shifting. The English courts appear to be now saying that a prenuptial agreement can be a material consideration when considering what adjustments to make to a divorcing couple’s financial circumstances on divorce. In M v. M (Pre-nuptial Agreement) (2002) 1 FLR 654, the court was prepared to take the couple’s prenuptial agreement into account as a factor tending to reduce the final award to the wife. Most significantly, in K v. K (2003) 1 FLR 120, the court held that the wife was bound to terms concerning capital distribution that she had agreed to in a prenuptial agreement she had signed. The court set forth the factors to be considered in determining the weight to attach to a prenuptial agreement. The decision indicates that, where there is no duress, where the parties have received independent legal advice, where the relevant facts have been disclosed and the agreement is not manifestly unfair, English courts are increasingly likely to uphold the terms of a prenuptial agreement.

English courts might enforce foreign prenuptial agreements if the applicable law is that of a jurisdiction that enforces marital agreements. In general, if the married parties are domiciled in different jurisdictions, English law provides that the matrimonial domicile (which, even today, usually follows the domicile of the husband) determines the law applicable to the couple’s movable property. Therefore, if the husband is domiciled in a jurisdiction that would enforce a prenuptial agreement, the terms of the agreement should be applicable to all of their property except for real estate.

See our article Enforceable Pre-nuptial Agreements: The World View

Update October 20, 2010: England’s Supreme court allowed a prenuptial agreement to be upheld.  Britain’s Law Commission will review the law in 2012. [via Total Divorce Blog]

FINLAND
Prenuptial agreements are enforceable in Finland. A new law applies in Finland which allows the spouses to decide in advance which law will govern their marriage, provided that at least one of the spouses has a connection based on nationality or domicile to the State whose law they want to apply.

FRANCE
France is a party to the Hague Convention on the Law Applicable to Matrimonial Property Regimes, which specifically authorizes prenuptial agreements. Specific provisions concerning prenuptial agreement are also set forth in the Code Civil Francais, art.1387 et seq.

See France Civil Code Prenuptial Agreements

GERMANY
Prenuptial agreements are enforceable. However, Germany’s Federal Court of Justicerecently ruled that notarized prenuptial agreements that seriously disadvantage one party in a marriage could be deemed invalid. The judges stated that while, in principle, a contract may state that one of the partners has renounced his or her right to receive alimony, if the agreement is one-sided it would be morally unacceptable and could therefore be challenged. The court also ruled that a spouse is free to contest the contract in instances of imbalance where her partner’s income has risen dramatically during the marriage because, for example, she was home caring for children.

GREECE
Prenuptial agreements are enforceable in Greece.

HONG KONG
It is unclear to what extent prenuptial agreements are effective under Hong Kong law. Section 7 of Hong Kong’s Matrimonial Proceedings and Property Ordinance (“MPPO”) sets forth the relevant factors to be considered by a court in resolving the financial issues between divorcing spouses, These factors do not include an agreement between the parties. Certainly prenuptial agreements in Hong Kong are not required to be enforced but if both parties were represented by counsel when they were signed, and if the documents were signed long before the actual wedding date, they may then be of significant evidentiary significance.

IRELAND
In Ireland it appears that the courts are not required to enforce prenuptial agreements. The Family Law (Divorce) Act 1996 gives the Irish courts extremely wide discretion over the distribution of a divorcing couples assets. There is a dearth of authority on the issue of the extent to which a court in Ireland will take a prenuptial agreement into consideration in its distribution of assets and, in the absence of such authority, it is assumed that Irish courts will not consider (and will almost certainly refuse to automatically enforce) a prenuptial agreement. See, e.g. Geoffrey Shannon, Pre-Nuptial Agreements in Ireland, 2003 I.F.L. 132.

ISRAEL
See attached article

ITALY
Despite scarce case law on such agreements, it is possible that general principles of contract law will require that contracts made in preparation for an imminent divorce will be deemed null and void on public policy grounds. (Cass. civ., 11 agosto 1992, n., 9494, cit., above note 35: “È nulla, per illicità della causa, la transazione circa i rapporti economici che sia intervenuta tra i congiugi prima del procedimento di divorzio.”).

However, many jurists in Italy dispute this view. The difficulties caused by denying validity to such contracts is mitigated by the availability of the “separazione dei beni” agreement, which may be implemented prior to the marriage. This may cover only the assets acquired by either party during the marriage.

Prenuptial agreements entered into pursuant to foreign law which are valid under that law may be enforceable in Italy unless void on public policy grounds.

JAMAICA
It is believed that a case concerning prenuptial agreements has not yet been brought before the courts in Jamaica. Traditionally, Jamaica has followed English law.

JAPAN
In Japan, the Horei Law authorizes spouses who marry in Japan to choose which matrimonial law regime will govern their marriage, provided it is either the law of the country of either spouses nationality or habitual residence or, regarding immovables, the law of the location of the immovables. The Horei Law also specifies that prenuptial agreements are valid when made under the provisions of a foreign law, and sets forth a provision for registration of foreign prenuptial agreements in Japan.

Forum selection clauses are widely upheld by Japanese courts. Their validity in prenuptial agreements that preclude the jurisdiction of Japanese courts will likely be upheld if the matter in question is not within the exclusive jurisdiction of the Japanese courts, and if the court designated by the agreement would have jurisdiction over the matter in question, independently, under the law applicable in that forum.

LUXEMBURG
Luxemburg is a party to the Hague Convention on the Law Applicable to Matrimonial Property Regimes, which specifically authorizes prenuptial agreements.

NETHERLANDS
In the Netherlands, the parties may enter into a prenuptial agreement at the time of concluding their marriage (or,and during the marriage itself but in the latter case, the approval of the courts is required. They can thereby choose between one of three models described in the code, or regulate their property relations, with some limitations, as they wish. The prenuptial agreement has to take the form of a notarial deed and to be entered in a matrimonial property register. See Antokolskaia & Boele-Woelki, “Dutch Family Law in the 21st Century: Trend-Setting and Straggling behind at the Same Time,” vol 6.4 Electronic Journal Of Comparative Law (Dec. 2002). The Netherlands is a party to the Hague Convention on the Law Applicable to Matrimonial Property Regimes, which specifically authorizes prenuptial agreements.

NEW ZEALAND
Prenuptial agreements have been permitted in New Zealand since enactment of the Matrimonial Property Act 1976.

The Property Relationships Amendment Act 2001 renamed the 1976 act as the Property (Relationships) Act 1976 and extended the property division regime to the division of the relationship property upon separation or death of married couples, partners in de facto relationships and partners in same sex relationships. The general rule is that of equal division of property brought into being during the relationship.

Section 21 of the Property (Relationships) Act 1976 expressly authorizes married and de facto couples to enter into opt-out agreements with respect to the status, ownership and division of their property, including future property. The agreements must conform to certain formalities.

Previously if such an agreement caused “injustice” it could be set aside. From 2001 such agreements cannot be set aside unless it is established that they cause “serious injustice.” Accordingly, it is expected that not many agreements will be set-aside in the future. The purpose of the reform was to provide greater certainty as to the enforceability of contracting-out agreements.

The Act also contains (Sec. 7A(2)) somewhat unusual provisions concerning the applicability of foreign prenuptial agreements to “relationship property” as defined by New Zealand law, which require that prenuptial agreements drafted anywhere that involve a New Zealand connection should be drafted carefully.

NORWAY
The spouses may enter into binding agreements concerning maintenance and other matters before or after divorce or during divorce proceedings. See e.g. Norway’s Marriage Act, Section 83. A spouse may agree to renounce his or her future right to maintenance, as long as it is not with regard to a hypothetical future divorce.

The Brønnøysund Register Centre, Norway’s central register authority, contains a Register of Marriage Settlements. That Register contains agreements between spouses regulating their assets/property in a different way than what automatically follows from marriage legislation. If, for example, spouses wish to register separation of property, they must establish a marriage settlement. If the marriage settlement is to confer protection against any creditors, it must be registered in the Register of Marriage Settlements. The same provisions apply to registered partners.

The Register of Marriage Settlements contains registered marriage settlements from 1928 up to the present. A total of 120,000 marriage settlements registered prior to 1981 have been registered in a manual index file, while registrations after 1981 can be searched in a database.

The Register of Marriage Settlements contains important information about the assets/property of spouses, and the principle that such information should be public applies to this register as well. To obtain information about a marriage settlement it is sufficient to submit the name, date of birth and address of one of the spouses. For electronic searches in the database of marriage settlements it is helpful to also provide the national identity number of one of the spouses.

PHILLPINES
The law of the Philippines allows spouses to execute and file with the Civil Registry a prenuptial Property Agreement (Surat Pernyataan Harta) which must be signed before a local notary public. Otherwise, Indonesian marriage law assumes joint ownership of property.

PORTUGAL
Prenuptial agreements are enforceable in Portugal. Portugal is a party to the Hague Convention on the Law Applicable to Matrimonial Property Regimes, which specifically authorizes prenuptial agreements.

RUSSIA
Prenuptial agreements are enforceable. See “Grounds For Divorce And Maintenance Between Former Spouses: Russia” by Dr. Masha Antokolskaia:http://www2.law.uu.nl/priv/cefl/Reports/pdf/Russia02.pdf.

SINGAPORE
Prenuptial agreements are treated “cautiously” in Singapore. The existence of an agreement concerning financial matters is “only one factor that the court is obliged to consider.”

SOUTH AFRICA Prenuptial agreements in South Africa are enforceable.

SPAIN
Prenuptial agreements are enforceable in Spain, unless they should be detrimental to the children or seriously damaging to one of the spouses. Article 90, Spanish Civil Code. In recent years, there has been a large increase in the number of prenuptial agreements signed in Spain. See “Separate Property and Family Self-Determination in Catalonia: A Peaceful Model under a Radical Change?” by Albert Lamarca i Marqus:http://civil.udg.es/isfl/europeanregionalconference2003/texts/pdf/Lamarca.pdf

SWEDEN
Prenuptial agreements are enforceable in Sweden.

SWITZERLAND
Prenuptial agreements are enforceable in Switzerland. Prior to a marriage abroad, you must consult the private international law of the chosen country to find out the conditions to be met and the applicable judicial regulations. This informed outlook will help you choose a solution that best suits your needs. In fact, the applicable matrimonial regime will be the one you will have chosen (written agreement, marriage contract). You may choose between the law of the country in which both of you are residing and the law of the country of which one of you is a citizen. You may modify your selection at any time. In general, if you have not expressed a choice, the law of the country of residence applies. Micheloud & Cie 2003http://switzerland.isyours.com/e/immigration/marriage/marrying_a_swiss_outside_of_switzerland.html

TAIWAN
Prenuptial agreements are enforceable in Taiwan.

THAILAND
Prenuptial agreements are enforceable in Thailand.

TURKEY
Prenuptial agreements are permitted in Turkey. There are three types of optional regimes: separation of assets, participation in separated assets and partnership in assets.

TURKEMENISTAN
It is reported that a foreign man who wishes to marry a Turkmen woman must first sign a prenuptial agreement with the proposed spouse based on a state-provided template.

U.S. VIRGIN ISLANDS
Prenuptial agreements are presumptively valid in the United States Virgin Islands.