One of the impacts that the COVID-19 pandemic had on the lives of millions of people around the world was to delay their weddings. While this inconvenience does not compare to the lives lost and the illness surrounding the pandemic, it is not something completely inconsequential in the long run. Delayed marriages mean that people's lives were not able to "start" when they wanted them to. Arrangements had to be changed or delayed. Businesses lost what probably amounted to billions of dollars due to weddings that did not occur, were downsized, or were taken in a different direction as far as the planning. While it may seem insignificant to talk about a delayed wedding or one that didn't even happen because of the pandemic, there are real consequences to this occurrence for people all around the world.
While we are hopefully well past the time when most events like this had to be postponed because of a respiratory virus, the fact is that postponements of weddings will still occur going into the future. Brides get sick, grooms break their legs, venues get double booked, or get struck by lightning. Weird stuff occurs that is out of our control. When these delays or postponements occur it usually just means that people have to re-book their travel reservations. However, it can also mean that there are consequences regarding pre-marital planning that the couple has gone through.
If you and your fiancé created a prenuptial agreement together then you know that the agreement only has legal importance or relevancy once, you are 1) married and 2) a divorce has been filed. Until both of those things happen the document is largely irrelevant. Think of it like your will. The second your will is drafted and signed your children don’t get to come into your bedroom and start sorting through your jewelry and cash. Rather, they need to wait until you pass away to begin thinking of doing so. That is because a will is just a piece of paper until the testator, the person whose will it is, passes away. The same concept applies to a premarital or prenuptial property agreement.
Another scenario to think about pertains to whether you should continue to negotiate a premarital property agreement while a postponement is ongoing regarding your wedding. Without a specific date to say that you are getting married, there may be an element of your premarital property agreement that cannot be negotiated upon, or what you had previously negotiated upon must change. So, if you have recently been diagnosed with an illness that will require you to leave Houston for treatment or have any other reason in your life as to why your wedding may be delayed then this is a relevant question to ask yourself, as well.
In today's blog post from the Law Office of Bryan Fagan, we are going to discuss what it means to delay a wedding and its impact on your premarital property agreement. Questions about anything that we have included in this blog post can be directed to the attorneys with the Law Office of Bryan Fagan. Our attorneys and staff would be happy to speak to you about those questions as well as to set up a free-of-charge consultation with an attorney to talk about your needs pertaining to premarital or marital property agreements.
At what point in time is a prenuptial agreement signed?
A prenuptial agreement is a written contract created by you and your fiancé or spouse. The purpose of a premarital property agreement is to decide certain financial matters that would become relevant to your life when you and your spouse get divorced. The idea is that it is better to negotiate these subjects in advance with your fiancé rather than during a divorce with your spouse. There will certainly be different emotions hanging around the negotiation table in a prenuptial negotiation session versus in a divorce negotiation session. As such, you should be able to negotiate a prenup rather than a divorce. Seems that most people get more out of negotiations and are more clear-headed.
Another benefit of negotiating a premarital property agreement is that you can treat it as pre-marriage counseling if you have an open mind. No, you won't be receiving a counseling session because of signing a prenup. But you will be going through many of the difficult financial discussions that many people never have with their spouse or only have at a divorce negotiating table. Additionally, you may even find out information about your fiancé that becomes reason enough to not get married. While this probably does not happen all that often, it can be better to discover hard truths about your spouse before your marriage rather than having to wait until you are already married to find these things out.
There are no specific rules or laws in place about how far in advance of your marriage you can sign a prenuptial agreement. It is a good idea, in our opinion, to have a premarital agreement negotiated upon, drafted, and signed well in advance of the wedding. Again, you do not want to discover that you don't want to get married based on the information disclosed in these negotiation sessions. To find this out one week before all your friends and family are coming in for a wedding would be unfortunate, to say the least. For that reason, you and your fiancé may want to engage in those negotiations soon after becoming engaged. Why wait until the last minute? The two of you can sort out any misunderstandings and become extremely intentional about how you are approaching the finances in your marriage. You can make a solid argument that negotiating a premarital property agreement may be something that can strengthen your marriage.
Another reason why you may want to draft the premarital agreement well in advance of a wedding is that you need the document to be enforceable by a court. Ultimately the premarital property agreement only has legal importance if you get a divorce or if one of you passes away before the other. In the context of a divorce, the premarital property agreement would be attached to a petition for divorce as an exhibit for the court to reference throughout your divorce. For the document to be held to be enforceable it should be drafted well in advance of a wedding.
The reason for this is that you don't want to give any indication that the agreement was signed due to you all feeling pressured to get it done before the wedding. The legal term for feeling pressured to sign a document is "duress." If that is found to be a factor in the signing of the agreement, then the entire document is void. That means that it is not worth the paper that it is printed on and will not be utilized in the divorce. All the time and money spent negotiating and drafting the document would have been for nothing.
The last consideration in this regard would be to say that you and your fiancé probably do not want to be engaging in nitty-gritty prenuptial negotiations just before your wedding. Without a doubt, there is nothing romantic about a prenuptial agreement. That's not to say that you and your fiancé should not consider drafting one but doing so right before your wedding will not add to the romantic element of this otherwise joyful period in your life. As such, you should take the time to do this well in advance of the wedding so that you don’t negate the happy feelings you have about tying the knot with your friends and family nearby.
What happens if your wedding is postponed?
One of the most significant concerns many people have in conjunction with a wedding is the possibility that it could be delayed or otherwise pushed back for any reason. We have already gone through several reasons why a wedding may have to be postponed. If yours does have to be delayed and you have already drafted a premarital property agreement you may have some questions about the document that you created. If your wedding is postponed, then is your signed prenuptial agreement effective or valid?
We know that a prenuptial agreement is executed (Signed) before the date of your marriage but it does not become effective at that time. Rather, the prenuptial agreement becomes effective when you get married. If you never get married, then the document has no legal value whatsoever. Even after you get married the document will only truly have any legal importance in the event of death or divorce. The effective date of your agreement is postponed along with the marriage itself if your wedding is delayed for any reason.
It could be a good idea for you and your fiancé to sign a new prenuptial agreement depending on exactly what is going on in your life. A prenuptial agreement is only validly entered into when you and your spouse have discussed thoroughly the issues relevant to your life as far as your finances are concerned. A lot can change from a financial perspective in just a few months. So, if your premarital agreement is a few months old you may benefit from looking at your finances and determining whether or not it would be worth it to re-draft the agreement and sign a new version just so there is no question about the enforceability of the document moving forward.
How can a prenuptial agreement become unenforceable?
This final section of today's blog post will get into what conditions may be present either in drafting the prenup, in negotiating the prenup, or have developed since that time which would render the prenup enforceable. These are things that you want to avoid when it comes to drafting the prenup or conditions that you should prepare for in that regard.
Make sure that the agreement is in writing, first. An oral prenuptial agreement or an “understanding” held between you and your spouse is not good enough. You need to put your agreement into writing. Make sure that your agreement is specific enough to include everything that you want your prenup to include. A prenup does not have to contain anything as far as provisions are concerned. However, if you have something in mind that you certainly want to be included you should be clear about that in the document. You need to sign the agreement and so does your fiancé. If only one of you signs the document is not valid.
Next, you need to walk through the agreement and make sure there is nothing unconscionable or otherwise illegal contained in the document. The terms and provisions in the document cannot violate state or federal law. We see this happen sometimes regarding child support. Do not contract for someone that you could not negotiate for in a divorce. The law in Texas, for example, does not allow for you to terminate your parental rights to a child without going through a court. A family court must determine that it is in the best interests of your child for your parental rights to be terminated. As you may imagine this is a serious question to put forward to a judge and not one that is to be taken lightly. As a result, you certainly cannot contract to have your parental rights terminated or otherwise avoid paying child support because of a prenuptial agreement.
Another factor to consider here is what can happen if your life changes dramatically from the time that you entered into a prenuptial agreement and the time that you get divorced. There are so many possible scenarios that could develop during that time that it wouldn’t make sense to even speculate as to what could happen to you. Suffice it to say, your life could change for the worse for a host of factors and reasons.
Let’s imagine a situation where, in 2015, you and your fiancé negotiated a premarital property agreement where you both decided that no spousal maintenance or alimony would be paid were you to get a divorce. At that time both of you were high-income earners and had no apparent need for the other person to support you for any period. As a result, you decide to just eliminate the possibility that spousal maintenance could be an issue in a hypothetical divorce.
Fast forward to 2022 and you have since been diagnosed with cancer and have not been able to work since 2019. While you are doing better you still will not be able to return to work for at least a couple of years. Your ability to live depends upon the income of your husband. However, your husband just filed for divorce a few weeks ago. Now you are looking at a situation where you could stand to benefit from spousal maintenance or alimony but are unable to negotiate for it or even ask for it in a divorce trial. Or so you think.
Our position on this is that a court would be unlikely to enforce any provision of your prenuptial agreement that is unconscionable, that is it violates fair dealing and any sense of fair play when it comes to your life where you stand right now. Neither you nor your spouse could have anticipated a cancer diagnosis years ago when you were drafting the prenup. Although the document is valid and enforceable, the provision barring either of you from asking for spousal maintenance is likely to be found to be unconscionable and would be unlikely to be enforced.
Another factor that could ruin the document is to be incomplete the information that you provide to your fiancé. A more extreme example would be to provide false information to your finance during the negotiation phase. A contract is only valid if both sides provide complete disclosure of the relevant information to the other side. Your income, assets, debts, and value of your property owned is a baseline for the type of information that you should provide to your fiance. If you fail to do so, then you put your fiancé at a significant disadvantage when it comes to negotiating this contract. Making an informed decision is not possible when you mislead, lie to or hide information from your fiancé.
With so many moving pieces involved in negotiating a prenuptial agreement, it can pay huge dividends for you to have an experienced family law attorney guiding you and helping teach you about this process. Do not enter into a prenuptial agreement with your fiancé before considering what our attorneys can do to help you.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family's circumstances may be impacted by the filing of a divorce or child custody case.