When should a prenuptial agreement be drafted?

Spring and Summer are traditionally the seasons when most people get married. So it’s not a surprise that I’ve been getting a huge number of calls and clients asking for prenups (or more properly prenuptial agreements or premarital agreements).

The unfortunate thing I find myself telling most of these clients is that they should’ve contemplated drafting this prenuptial agreement with a Massachusetts attorney months ago. You should start negotiating and drafting a prenup, ideally, 3 to 6 months before the marriage date.

Why?

If the day ever came when you actually need to use this prenuptial agreement, during a divorce or separation, you want your prenuptial agreement to be upheld in court if it were to get challenged. The court looks at 3 main criteria: (1) when the prenup was signed (2) whether both parties had independent legal counsel and (3) the fairness of the prenup.

If you drafted a prenup a few weeks before marriage, the argument for invalidating the prenup would go as such: ”I didn’t want to sign the prenup but because all the invitations had already been sent out, I felt I had no choice but to sign it.” This is the definition of duress and would, if the judge was convinced, invalidate the prenup.

So does this mean that if you didn’t read this blog post and you’re getting married in a few weeks just give up and forgo the prenuptial agreement? No. Having one is still better than not having one at all. This is because there’s a good chance that the prenup won’t get challenged at all if there ever was a separation or divorce. In addition, there’s also a chance that even if challenged, the prenup would still be valid because the other 2 factors were met.

In conclusion, if possible, try to get a prenup drawn up 3-6 months ahead of time, have separate lawyers for both parties and make the prenup somewhat fair.

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