We all recall the song by Kanye West, “God Digger,” released August 30, 2005, with the lyric line: “Holla, ‘We want prenup! We want prenup!’ (Yeah!).” Well, even if you’re not marrying a gold digger and neither of you have anything to protect, a prenup is still a good idea. Why? Because no matter how much you love each other and believe it will last forever, reality says it’s only 50/50 that it will last forever, and one day one or both of you may accumulate a good amount of assets or debts. By entering a prenup when in love, it may help prevent or limit a World War III style divorce later that could drain all accumulated assets, only making the lawyers richer.
In a prenup: You can allocate how all assets in each other’s name individually or jointly will be divided and equitably distributed. You can determine how much spousal support if any will be paid and for how long. You can determine if separate property can be earned and accumulated after the marriage that would otherwise be marital property. You can determine if legal fees in a divorce will be paid by each of you individually or preclude either party from paying the other party’s legal fees. You can decide everything except custody, visitation and child support.
At one time not long ago, a properly drafted prenup was fairly rock solid and could not be challenged for the most part past six years after it was entered into with a few exceptions such as fraud or misrepresentation. Now the statute of limitations does not begin to run until a divorce is filed, so it can be challenged at the time a divorce is filed more than six years after it was signed. In my opinion, this was done solely to insure further litigation for lawyers to make more money and to make room for more judges.
There is no guarantee a prenup will hold up when contested, so why have one? Easy, if properly written it can still limit litigation and further it can prove separate property once all records of banks accounts and proof of earning capacity are gone.
So, what can we do to limit the possibility of a prenup being overturned and protect separate property? Simple, make sure the prenup you sign: recites the law on equitable distribution and spousal support so no one can claim he or she did not the law being waived; both parties have an attorney to review the prenup with prior to signing and both lawyers names and addresses are recited in the prenup; make sure both parties fill in a statement of net worth and attach statements for accounts, deeds to property, tax returns with backup documents as exhibits to the prenup to prove your separate property and to ensure each other’s earning capacity is set forth. Also make sure there is a statement in the prenup that “the Wife and Husband love each other for who each other are as people, and not for what each other are in business, and not for what each other has, and that they would still marry for love even if one or both were poor” as love has been found to be proper consideration.
This will ensure that the prenup is NOT easily overturned, and if it is, what your separate property was at the time of marriage, and your spouse’s earning capacity. Make sure to keep this in a safety deposit box so it does not get lost or stolen or destroyed. Try to file an extra original at the county clerk’s office as a separation agreement, so if your original is lost, you can go to the county clerk’s office and retrieve a copy of it and have it certified as an original copy. But the county clerk if awake may not let you file it. It’s worth the try though.