Prenups and Postnups

SKILLED NEGOTIATION TO PROTECT YOUR RIGHTS WITH AN ENFORCEABLE PREMARITAL CONTRACT

In today’s society, marriage has become a risky proposition. Even the most romantically inclined should consider that a divorce some 10 or 20 years in the future is a distinct possibility, and that such a divorce is likely to cause financial turmoil. If you have financial goals for yourself, you can take an affirmative step to protect those goals by entering into a prenuptial agreement with your future spouse.

At WalshLaw in Nashville, TN, I draft effective prenuptial agreements for clients who want to protect their property in the event of divorce. I take the time to observe the necessary formalities for a valid, enforceable contract and will draft terms that protect your property rights.

Depending on your circumstances, there are several reasons you might want to execute a prenuptial agreement:

• Protect your separate property from commingling — If you are entering a marriage with significant wealth, you want to be free to use that wealth for your enjoyment while retaining full ownership rights. However, when you and your spouse use your separate property as though it is marital property, a court could find the property is commingled, giving your spouse an ownership interest. In such a case, your separate property could be subject to equitable distribution as part of your divorce.
• Protect future separate property — If you anticipate receiving certain gifts, inheritances, or income from a trust, you can state clearly that such property is and will remain separate, to protect against any commingling with your marital estate.
• Secure an inheritance for your children — If you have children from a first marriage, you want to make sure certain of your assets will go to them at your passing, rather than going to your spouse in a divorce settlement.
• Preserve your standard of living — Divorce is expensive. If you find yourself paying to support two households instead of one, your standard of living can suffer greatly. By including an alimony settlement in your prenup, you can protect yourself against an adverse order of support from the court.

When you consult with me, we can go over your specific circumstances and your goals for the future to ensure the agreement we create offers the protection you need.

The law governing an “antenuptial agreement” in Tennessee is TN Code § 36-3-501 (2017), which states an agreement enforceable if it was “entered into by such spouses freely, knowledgeably and in good faith and without exertion of duress or undue influence upon either spouse.” To determine if your agreement satisfies these criteria, a court will look at several factors, such as:

• Timing of the agreement — If the date of the signing is close to the date of the wedding, a court may find duress, especially if the planned wedding is an elaborate affair where one party is paying the lion’s share of the costs and the other is demanding the prenup be signed. Duress might also exist if the wedding was widely publicized and the party being asked to sign a prenup would suffer embarrassment if the wedding were called off. Couples should negotiate and execute a prenup well in advance of the wedding date.
• Relative bargaining power of the parties — If one party has a great deal to lose if the wedding is called off or can’t afford legal representation to protect their interests during the creation of the prenup, a court could rule the party did not enter the agreement freely. Each party should have their own lawyers to negotiate, or at least review, the document before signing.
• Relative sophistication of the parties — If the document is so complex that only the more sophisticated party can understand its terms, a court could rule the other party did not enter into the agreement knowledgeably.
• Transparency — Each party should fully disclose their assets and debts to the other. Failure to disclose is evidence of a lack of good faith.
• Fair terms — A court will not uphold a prenup that is so unfair that enforcement would be unconscionable.

When you work with me to create a prenuptial agreement, I take the long view on enforceability, making sure we observe all the legal protocols to execute a valid contract.

If you are getting married, you should consider protecting your financial future with a prenuptial agreement. WalshLaw provides honest counsel and reliable execution of marital contracts. To schedule a consultation, call 615-915-0760 or contact my Nashville office online.  My office is located on the 15th floor of the UBS Tower, (315 Deaderick Street), right across the street from the Davidson County Courthouse.