Cons of a prenuptial can include both legal and psychological issues. Most couples should consider both the pros and cons of a prenuptial agreement before entering one. Cons can include enforceability, expense, stress on a relationship, and whether an agreement is necessary.
Cons of prenuptial: enforceability and expense
The likelihood of whether a court enforces your prenuptial agreement varies according to jurisdiction, interpretation, and circumstances.
Some states limit what can be included in a prenuptial agreement. If your agreement includes unapproved items, it may be dismissed. (The Uniform Premarital Agreement Act has reduced this problem in a number of states.)
States also require the terms of the prenuptial agreement to be fair and equitable at the time it's created. It is the court's discretion to make this judgment. Some courts will only enforce the prenuptial agreement if the terms are fair at the time of enforcement.
Prenuptial agreements can also be expensive. Depending on the complexity of your finances and the length of time your negotiations take, you can pay between a few hundred and several thousand dollars if you work with a lawyer. There are inexpensive, do-it-yourself agreements available online, but they may be challenged in court if a judge believes they were not understood by both spouses or were drafted incorrectly.
Cons of prenuptial agreements: emotional costs
Negotiating a prenuptial agreement may also hurt a relationship. It may signal a lack of faith that the marriage will last, a lack of trust between spouses, and put stipulations on a marriage before it's even begun. If a prospective spouse's parents insist on a prenuptial agreement to protect their child's or the family's interests, conflicts between the fiancé and his or her in-laws, or between the families of the two spouses, may persist through the marriage.
Spouses must voluntarily enter into the prenuptial agreement. If the wealthier spouse uses the agreement as a condition of marriage, the courts will most likely dismiss it.
Is a prenuptial agreement right for you?
Anything you own prior to your marriage is separate property and stays that way as long as you keep it separate (don't mix it with joint accounts or use it for the benefit of the marriage). Many states will not divide separate property in a divorce, so a prenuptial agreement may not provide any additional protection. However, if you have children from a previous marriage whom you want to provide for, or need the extra security of knowing your property will remain yours, it may be wise to put get something in writing.
Legal professionals usually advise clients to consider both the pros and cons of prenuptial agreements, particularly the emotional and legal aspects, before choosing whether or not to get one.
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