Jospeh Emmons: Things You Need to Know About Prenups

A prenuptial agreement, also be called an antenuptial agreement, or “prenup”, is a contract between two parties who are soon to be married. The usual purpose is to protect property rights. As a Prenup Lawyer, I can tell you that these agreements must be in writing.

It is best to draft with precise language that makes the intent of the parties clear. When the agreement includes waiving of rights provided by statute, such as the statutory right to “take against the will”, then the agreement should specifically reference with clear language what statutory rights are being waived by the agreement.
It is important that the circumstances surrounding the execution of the agreement show that the agreement was signed voluntarily, with full knowledge, that both parties had time to consider the agreement, and both parties knew that they could consult an attorney to represent their interests. The best practices is to (if possible) require each party to have their own attorney. In addition, the prenuptial agreement should be signed well before the marriage date instead of surprising one party just prior to the wedding date. A Court may inquire if the party had time to read and consider the agreement, if the party had independent counsel, or if there was coercion or undue influence as part of considering whether there is a defense such that the agreement was unconscionable or there was overreaching.
A court may inquire if there was full and fair disclosure of all assets and of the effect of the agreement. Good practice may include attaching an inventory of assets and the value of each asset to the agreement to provide full disclosure. This is an area where one party often resists – full disclosure. They just want a document that says something to the effect of “what is yours is yours and what is mine is mine” and to bypass disclosure. Full disclosure makes the document less subject to attack in a divorce.
Utah law gives a surviving spouse only four months to bring a legal action to contest an ante nuptial agreement after the death of his or her spouse. Affirmative defenses such as fraud or duress must be put in the legal pleading.
A Court may find certain provisions of the prenup to be unconscionable at the time of divorce. This may be due to unforeseen circumstances such as a large change in the assets of one party. A court may choose not to uphold provisions of the prenup that it finds unconscionable.
Parties should be aware that modifications (postnuptial agreements) made after marriage which are more restrictive or harsh than the original agreement may be closely scrutinized by the Court.

Can I just get a packet of free divorce, dissolution, visitation or custody forms? Do I need a lawyer?

Many times people find themselves asking these questions. At a minimum, you need to do some research. Now that the internet has become an integral part of our lives, there is information available to a regular joe that we never had access to before. Look around on the internet, get some information, and then ask yourself this question- If I’m wrong about this, can I live with the consequences?

Hindsight is always 20/20, but generally, the law expects us to live with the consequences of the agreements we make, for better or for worse. Many times people sign forms from divorce or custody “packets” without the advice of a lawyer, reasoning that they can always go back to court later if they need to. Unfortunately, people are sometimes shocked to find that they gave their ex-spouse or significant other sole custody of the children when they thought they were receiving shared parenting. In the law, the WRITTEN words matter. In addition, the law places the burden of understanding the legal meaning of the documents on the person who signs them. The more you have to lose, the less you can afford to take chances.

You are rarely required to have a lawyer. Generally, you are free to represent yourself in court. In addition, you don’t always need a lawyer. There are many things in family law that you can do without a lawyer. For example, you do not need a lawyer to get a marriage license. Most of the time, you do not need a lawyer to change your name. You don’t need a lawyer to file for a protection order if you are a victim of domestic violence. Many people are able to handle their legal matter to their satisfaction without an attorney.

If you are not sure if you need an attorney, consider arranging a consultation. Remember, a consultation does not mean that you are agreeing to hire a lawyer. It means that you are paying for a block of an attorney‘s time in order to ask questions and receive information about the law. Some attorneys offer free consultations, many do not. What is most important is the quality of information you receive during your consultation. A consultation is not simply an “audition” for the lawyer. You are entitled to receive information and answers during that consultation, even if you cannot afford to hire a lawyer. The information you receive during this consultation will help you make some very important decisions.