The issue with online prenuptial agreement forms is that no one ever sat across from you to gather information and to counsel you on the validity of the prenup.  The reason why prenuptial agreement lawyers charge the fees that they do is because they are giving you something that a computer program cannot – independent and personal legal advice.

A couple of quick reasons why the prenuptial agreement this woman called about would not have been valid is that it was too short to contain any financial information about the parties.  Both parties in a prenuptial agreement must trade detailed and complete financial information.  Secondly, in a generic prenup, there would not be any discussion of the  ”section 34″ factors that is required here in Massachusetts to be in a prenuptial agreement.  There is specific case law in Massachusetts that requires this and a non-state specific prenup would not have this.

If you’re going to spend the time and money to draft a prenuptial agreement, spend it wisely and don’t print one out online.

These 4 things (and more) is what I discuss and get my clients to discuss with their fiance when preparing a prenuptial agreement.  As I’ve said before, these conversations must be had before anyone gets married, with or without a prenuptial agreement.  Lisa Peterson, the founder of Harmoney, who I have had the pleasure of meeting, provides a great service to engaged couples where she helps facilitate this conversation over money with them.  Sometimes, it’s easier to have someone help you and your partner talk about such a sensitive and often contentious subject.

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Money Talks To Have Before Marriage

I’m often surprised when I do estate planning for newly wed couples when I ask them about each other’s financial picture and they simply can’t tell me.  They don’t know and they never bothered to have that conversation.  Nearly half of all marriage eventually end in divorce and of those, most are driven by disagreements over money.  If those are the statistics, then having a clear picture of each other’s current financial picture and also an understanding of each other’s goals and outlook on money is invaluable to keeping a marriage healthy and going strong.

Most couples however, only consider a prenuptial agreement with one or both have significant assets.  This is of course a wise thing to do.  However, couples on the other side of the spectrum, those with lots of debt, should also consider a prenup.  Debt incurred in a sole person’s name is generally regarded as that person’s debt alone.  But when couples get married, finances are mixed and sole debt starts to become marital debt.  At some point, there’s little or no way to distinguish what was sole debt and what is marital debt.  Bottom line: If you have a large amount of debt, get a prenuptial agreement to protect your future spouse.

I have had requests to include provisions dealing with a sex schedule for the couple.  In those cases, I tell them that it can be included, however it cannot be enforced.  If a husband sued his wife for breach of contract for not abiding by the sex schedule, a judge will rule that provision invalid in the prenup. This is because to condone it or to enforce it (legally called specific performance) would mean that the Commonwealth of Massachusetts condones rape.  You cannot force another person to have sex even if they’re your spouse and it’s not a right you can contract.

In almost all prenuptial agreements and in most contracts, there is a severability clause put in which states that if some parts of the contract is ruled invalid, it does not invalidate the entire contract but instead, the invalid portion should be removed.  If you do have some sort of sex schedule included in a prenuptial agreement, make sure it also contains a severability clause.

• Most recent statements from all bank and brokerage accounts
• Most recent statement reflecting all retirement accounts
• Most recent statements of any stocks, bonds, mutual funds, ETFs held outside of brokerage accounts
• Any life insurance policies
• Most recent pay stub
• Copies of tax returns for at least the last 2 years
• Most recent statements from all credit card or debt obligations
• Information regarding any real property, including but not limited to: fair market value of the home (tax accessed value), total mortgage amount, names of people on the mortgage and title
• Information regarding any automobiles and motor vehicles

If you bring these items and any other items relating to your finances to your first meeting with your prenup attorney, the meeting will be fruitful and productive.  Be prepared for the initial meeting with a prenup attorney to last approximately 2 hours.  It takes this much time to gather all the financial information and speak with you about the goals of the prenuptial agreement.

You cannot make provisions for child support, child custody or visitation ahead of time.  This is because the standard for child related issues is always the best interest of the child.  And it is in the best interest of the child if we look at the situation at the time of divorce to determine child support, custody and visitation issues.

Think about it, if child issues were allowed in a prenup and is binding on all parties, then even if one parent abused the child, they would still be entitled to custody or visitation with the child simply because the prenuptial agreement says so?  That would simply not be right.

In addition to drafting prenuptial agreements, I also handle a lot of divorce cases.  I’ve seen and also heard of so many prenuptial agreements where the husband had an attorney and the wife did not.  When I ask the husband if his attorney ever advised them to have separate counsel, he says “no”. Now, I don’t know if this is true or not.  Maybe the husband is lying or simply forgot.  Either way, it doesn’t matter because chances are, their prenup is invalid.

As a rule, I will not draft a prenuptial agreement for a couple without another attorney on the other side.  I don’t care if the other person waives their right to an attorney because I don’t believe that right is waivable.  Down the road, if this prenup is actually needed, I can bet you that even if they had waived their right to an attorney, they’re now going to say they didn’t.  They’re going to say they were coerced into signing something they didn’t understand.  And where do we end up at that point?  We end up with an invalid prenuptial agreement, pissed off client, and possibly a malpractice claim against the attorney who drafted the prenup.

It’s a lose-lose for everyone.

What about states like California and New Mexico that have community property?

Well, in those states, your prenuptial agreement will still be valid!  Community property laws or the Equitable Division laws of Massachusetts are simply default laws.  They are default for couples who don’t have a prenuptial agreement to instruct the courts.  If the couples agree beforehand, the default divorce laws do not apply.

So don’t worry.  Move around as much as you want and wherever you want.

Love is patient, love is kind. It does not envy, it does not boast, it is not proud. It is not rude, it is not self-seeking, it is not easily angered, it keeps no record of wrongs. Love does not delight in evil but rejoices with the truth. It always protects, always trusts, always hopes, always perseveres.

Love never fails. But where there are prophecies, they will cease; where there are tongues, they will be stilled; where there is knowledge, it will pass away. For we know in part and we prophesy in part, but when perfection comes, the imperfect disappears. When I was a child, I talked like a child, I thought like a child, I reasoned like a child. When I became a man, I put childish ways behind me. Now we see but a poor reflection as in a mirror; then we shall see face to face. Now I know in part; then I shall know fully, even as I am fully known.

And now these three remain: faith, hope and love. But the greatest of these is love.

- 1 Corinthians 13

Because of the Defense of Marriage Act (DOMA), constitutional bans on same-sex marriage in other states, and a lack of same-sex marriage laws in other states, couples who marry here in Massachusetts and in New England suffer great inequalities once they leave the safety of those select states that allow same-sex marriage.  Once they leave and go to a state that does not have same-sex marriage, they’re no longer married!

So what happens if you were married here in Boston, Massachusetts and you  move to Texas AND you now want to divorce your spouse? You can’t.  You cannot get a divorce because you’re not married.  This is where a prenuptial agreement might help.  If you had a prenuptial agreement and you and your spouse is having a disagreement on how to divide the marital assets, then the prenuptial agreement is simply a contract between two people.  It is a contract whether or not the couple is classified as “married” or not.  In theory, a prenuptial agreement will still hold up in court (although not family court most likely) if a disagreement and dissolution were to occur in a same-sex relationship in a non-friendly state.

This is not guaranteed to work however because many states are still hostile towards the concept of same-sex marriage and therefore, they might seek any excuse to disenfranchise anyone who is gay.  However, having a prenuptial agreement can only help – not hurt.