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Working with the Client’s Initial Prenuptial Agreement Draft

Clients will often come to attorneys with a draft of a prenuptial agreement hoping to cut down on the cost thinking they have already done a majority of the work. What many clients do not realize is that there are several formalities in every state which must be met in order for the agreement to be found legal and valid. Additionally, clients might not realize everything that should be or could be included in the agreement. Clients want to ensure that their attorney is not only drafting a document that is according to their wishes, but that will also stand up to a challenge legally. This often means balancing your wishes with ensuring that formalities are met.

Individuals should make sure they are not just using a form they have found. A party should hire an attorney to make sure that the prenuptial agreements meets their needs. A party will also want to make sure that the attorney is checking with the specific laws in their state. There are various differences in state law concerning prenuptial agreements and these can affect the validity of any prenuptial agreement.

Schedules of assets and debts are also required in most states for a prenuptial agreement to be valid. Thus, it is important to provide an attorney the following (and this list is not all-inclusive):

  • Tax returns for last five years;
  • Copies of car and boat titles;
  • Life insurance and annuity contracts;
  • Documents relating to business ownership and value of interest;
  • Copies of stocks and bonds;
  • 401K, IRA and Retirement Account Statements;
  • Recent statements relative to bank accounts;
  • Deeds to property owned;
  • Divorce papers if married previously;
  • Wills and Trusts;
  • Powers of attorney; and
  • Health Care Power of Attorney or Living Will.

Again, it is the attorney’s responsibility to draft an agreement that is valid. However, be sure to communicate with your attorney thoroughly about your goals at the same time. Make sure as well that you have ample opportunity to review any prenuptial agreement before signing. You want to have a draft given to you in writing far in advance of execution. This way, you have ample time to communicate with your attorney regarding any questions you may have or any potential amendments. It is vital as well that any prenuptial agreement be signed after a full and fair disclosure of assets and liabilities, with both parties having an attorney representing them and that it is not under duress, undue influence or coercion.


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