Poor drafting and consideration of prenuptial agreements can defeat their purpose. Successful negotiation and drafting of this contract, also known as a matrimonial agreement in Louisiana, can help expedite resolution of property division and other matters if the couple ever divorces.
Prenups are recommended if either partner has a child, has a business or expects to get shares of a family business, holds a professional license or advanced degree, has more assets or debt than the other spouse, is much older than the other partner or expects to become a public figure and wants to avoid negative publicity. A prenup should cover basic financial and legal issues. It should not cover every potential marriage issue that might arises. Spouses need to be fair. The aim is not to prevail over a future spouse but to ensure that if there is ever a divorce, both parties will leave the marriage with their finances and self-esteem in reasonable shape.
Couples should inventory their individual assets, projected income and potential inheritance or gifts. They should discuss student loans and other significant debts. Obtaining credit reports and seeking information from parents may be helpful. Couples should also address professional licenses and ensure that it is not an asset that may be divided in a divorce. This is particularly important if one spouse paid for training and other licensing expenses.
Couples may also address the feasibility of keeping separate bank accounts that cannot be divided. Joint accounts may be considered community property. Claims against the other spouse's retirement accounts, property brought into the marriage or gifts to one spouse are important. The agreement should identify what assets constitute individual property and what assets constitute joint property. Debts incurred before marriage should also be handled in this manner.
Prenups should be signed well before the wedding and not at the last minute. Both parties have to decide matters clearly without the distraction of wedding plans. Courts may invalidate agreements made apparently under duress. Each party should also have their own attorney to represent their interests and provide independent advice. Boilerplate agreements or downloaded documents, drafted without the assistance of an attorney, are usually penny-wise, but they are a blueprint for a legal disaster.