How to Negotiate Your Prenuptial Agreement

Picture this: You’re about to marry the person of your dreams when suddenly they send over a set of documents they’d like you to sign before the wedding. Your future spouse – a high net worth individual – drafted these documents with their lawyer to detail what would happen with their wealth and assets should your marriage end in divorce. Otherwise known as a prenuptial agreement, these documents can be useful tools for both parties who are eager in ensuring that the terms of your divorce are fair and equitable.

While you may think a prenuptial agreement gets a marriage started on the wrong foot, in reality, a prenup puts you in a stellar position to negotiate. After all, isn’t it easier to make sure you are getting what you deserve should a divorce occur, when a divorce is the last thing on either of your minds? If your fiance wants you to sign a prenuptial agreement, our Irvine family law attorneys will ensure you have excellent counsel when negotiating its terms. 

Negotiating the Terms of a Prenup

When it comes to writing a prenup, most attorneys will throw in many terms that are favorable to their clients as a negotiation tactic. They assume they will have to concede on some, but by including them all, the other party will think they have come out winning. When one party has the bulk of the assets, this can be especially one-sided. As the party with less power, your main goal is to ensure that there are multiple triggers for increasing the value of your marriage at separation depending on the length of your marriage, whether you had any children, and what role you assumed within the marriage. For example, if your marriage produces children and you become their primary caretaker – shirking your career in favor of raising your children on behalf of your family – then you should be able to retrieve a substantial amount of alimony if a divorce occurs. 

As part of your negotiation efforts, you may also wish to consider which real property assets would be yours after the divorce. Generally speaking, any assets owned by one party before the marriage won’t be considered part of the marital property if and when the marriage ends. However, if one spouse owned the home that eventually became the family home, or if you purchased a home together during the marriage, then you should use the prenuptial agreement as an opportunity to advocate for allowing you to remain in the marital home should a divorce occur.

Otherwise, terms that you can negotiate within the prenup include a guaranteed sum of the household operating expenses, payment of attorney’s fees in the case of a divorce, reasonable expenses during said divorce, and your alimony payments.

We Are Irvine Family Law Attorneys Who Understand Your Situation

We understand that many clients are hesitant to negotiate the terms of a prenuptial agreement for fear that it will jeopardize their impending marriage. Our Irvine family law attorneys are careful to negotiate fairly so that you are entering the marriage knowing that you will be treated with respect. Contact our offices today.

Frequently Asked Questions

When should the conversation about a premarital agreement happen?

Early, and separately from the negotiation itself. Raising the subject months before the wedding gives both parties time to consider it, retain their own counsel, exchange disclosures, and negotiate terms without the pressure of an approaching date. That timing serves the relationship and it also serves enforceability, since an agreement negotiated under time pressure is the pattern most often attacked later. Presenting a completed document shortly before the wedding is the least effective approach on both counts.

Is a premarital agreement negotiable, or is it take-it-or-leave-it?

Negotiable, and treating it otherwise weakens it. An agreement presented as non-negotiable, particularly to a party without independent counsel, invites a later claim that execution was involuntary. Terms that are commonly negotiated include a sunset provision after a defined number of years, graduated rights that increase with the length of the marriage, treatment of a jointly purchased residence, a provision for support notwithstanding a general waiver, and how appreciation in a separate-property business is characterized.

What if one party has substantially more wealth than the other?

That disparity is exactly why these agreements exist, and it is also why the process matters. The wealthier party’s interest is a durable agreement, which means independent counsel for the other party, complete disclosure with values, ample time, and terms that a court will not find unconscionable when enforcement is sought years later. An aggressive agreement obtained cheaply is worth less than a balanced one that holds, because the entire value of the document lies in its enforceability.

Can an agreement be changed after the marriage?

Yes, through a postnuptial agreement, though the standards are different and in some respects stricter. Once married, spouses owe each other a fiduciary duty, so a postnuptial agreement in which one spouse gives up rights is examined for whether it was the product of full disclosure and fair dealing rather than of undue influence. Independent counsel for both parties matters accordingly. A postnuptial agreement is a genuine option where circumstances have changed, and it is a better route than relying on an informal understanding.