A client will often time present an attorney with a prenuptial agreement in a consultation setting with a request that it “be quickly reviewed to see if it is okay.” The client needs to understand that this expectation is not reasonable.
A prenuptial agreement, when property considered, frequently presents a more complex drafting challenge than a separation agreement negotiated at the time of a failed marriage.
In a divorce setting, the issues are concrete. Everybody knows what assets are to be divided. Standards of living have been established. The children and their needs are known and parenting responsibilities have been established by custom of the parties, if nothing else. With prenups, very little is known, except that the most pressing thing on someone’s mind is getting married.
While prenups attempt to achieve a bit of fairness and predictability in the event the marriage goes south or a spouse dies, people generally draft them ‘in the blind,’ under pressure and while wearing bright rose colored glasses. “Sure, I’ll waive spousal support,” says an anxious spouse-to-be, who is not fully comprehending that the marriage might end with the other running off with another (after 20 years of raising his children, giving up job advancements to tend to domestic responsibilities, with him secure in the knowledge that spousal support is a ‘known quantity” (i.e., zero).) Let’s get real!
We’ve Experienced Thousands of Scenarios
In fact, prenups are much more important and challenging than most people imagine. It is a forward looking document drafted when it is not possible to accurately assess exactly what the situation will be at the end of a 1-year, 5-year, 10-year, 25-year marital relationship. Unlike other documents, the prenuptial agreement needs to contemplate two very distinct events when it might come into play: the death of the parties (or either of them) when the parties (likely) are still in love, and the parties’ divorce when they (likely) are not.
Because of these complexities, you might expect to pay more for the drafting, review and negotiation of a prenuptial agreement that properly addresses all of the necessary issues than you would pay for a separation agreement. So when your attorney quotes you his or her exorbitant fee, the above discussion might explain why.
The typical topics that could be (but, as you get further down the list, frequently are not) covered by Prenuptial Agreement are: