Wedding Planning Checklist: Does Your Client Need a Prenup?

August 18, 2023

Reading time: 3 minutes

Your client may have the venue booked and flowers ordered, but do they need a prenup?  More and more couples are adding this “to-do” to their wedding planning checklist.  And while a pre-wedding appointment with an attorney isn’t the most romantic outing, you should be prepared to advise your client whether a prenup is suitable for their circumstances.  So, how do you draft an enforceable prenup?

As always, be sure to check your jurisdiction’s laws concerning the drafting and enforceability of prenuptial agreements. However, below is a brief checklist to consider before counseling your client concerning a prenup:

  • Are you qualified to prepare a prenup? ABA Model Rule 1.1 requires competence.  First and foremost, make sure you have the legal knowledge, skill, and thoroughness to prepare and deliver an enforceable agreement. 
  • Are you in a UPAA state? The majority of states have adopted the Uniform Premarital Agreement Act (UPAA), with the remaining states allowing prenups under different laws in their states. Review your state laws before using a generic form. After all, a prenuptial agreement is a contract and should be tailored to your client’s unique circumstances.  Note that any unconscionable terms will invalidate the agreement.  In fact, one variation between the UPAA and some state laws is the time at which unconscionability is determined.  Under the UPAA, this determination is made at the time the prenup is executed. However, several states, including Connecticut and New Jersey, require that the determination be made when the parties seek to enforce the agreement.    
  • What are the tax implications? Though not solely used by the wealthy anymore, if your client does have substantial assets to protect, make sure you understand and can advise them of future tax implications if the couple seeks a divorce.  Full financial disclosure is required, so you may need to coordinate with your client’s financial advisor as inadequate (or fraudulent) disclosure could render the agreement invalid. You may also consider consulting with a tax professional to ensure you can appropriately counsel your client as to state and federal tax obligations.  
  • Is the other party represented? Just like in most divorces, both parties to a prenup should have separate and independent counsel (in fact, some states actually require they do.)  Further, each party should have sufficient time to review the proposed agreement with their personal counsel.  If one spouse does not have adequate time to review or is coerced into signing, the prenup will likely be unenforceable.  
  • Did you address any support obligations?  Although most prenups are drafted for the purpose of the division of property upon dissolution of the marriage, another key concept to consider is ongoing support or alimony. Be sure to properly define these terms in accordance with your state laws and review how they will be taxed.

In general, remember to focus on the positive, pragmatic reasons for a prenuptial agreement. Signing a prenup doesn’t foreshadow the end of the marriage before it begins. You can reframe it as “the insurance policy you hope you never need.” So, before they break out the bubbly, be sure to toast to their prudent planning and forethought as you celebrate the happy couple.  Cheers! 

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