By Tim Barkley. July 2019.
It was Susan on the phone: “Can we get together? I need you to look at a paper my fiancé gave me.”
She came to the office with a large envelope in hand. “My boyfriend finally asked me to marry him. Then he gave me this and said I had to have a lawyer look at it. It’s a prenup.”
“When are you tying the knot?”
“Oh, not for awhile, but he said he wanted me to think about this before we got too far down the road. I told him I didn’t want his stuff and didn’t need a legal paper, but he said his lawyer told him I needed to sign this and have my lawyer look at it before I do. Do you do this kind of thing?”
“Absolutely. I just finished writing one for another client. And another guy brought his prenup to the office when we were working on his will, said I had to be sure I followed what it said.
“What’s your fiancé trying to protect?”
“He’s got money from his parents, and he’s 51% shareholder of the family business. He says his mom made him promise to get a prenup before he got married.”
“Not uncommon, especially in this day and age when more marriages end in divorce than don’t.”
“I tried to read it, but it’s long and just a bunch of legal mumbo-jumbo. Why can’t it just be simple – you know, ‘you keep your stuff and I keep mine’?”
“Well, you see, when you sign a prenup you’re giving up legal rights. For it to do what it’s supposed to do, you have to know what you’re giving up, and you have to do it voluntarily.
“You’re usually giving up four main rights: the right to division of family assets if there’s a divorce, the right to a share of his estate, the right to control his estate as his Personal Representative, and the right to the spousal share of his retirement money.
“Each of these rights requires that you knowingly and voluntarily waive them. And it’s important to put them in writing. That way when people aren’t remembering so well, they can point to the paper to remind themselves and each other.”
“What happens if I don’t have a lawyer look at it?”
“It’s not that it’s illegal if you don’t, but if you don’t have a lawyer advise you, then his lawyer will worry that you’ll say you didn’t know what you were signing, didn’t understand it, or that your fiancé used undue influence to make you sign or made promises to you to get you to sign. If you have a lawyer, it’s hard for you to say any of that.”
“So if I want to be mean, I could just refuse to have you read it?”
“Maybe that would mean you could find another husband. How important is this to him?”
“It’s pretty important. That’s what’s held us up.”
“Well, it’s up to you. Would you really want to force the issue?”
“I guess not. I do want to marry the guy, but I wish it didn’t have to be all legal and stuffy. Is there anything else I need to do?”
“After we’ve been through this, we’ll need to talk about your will and other papers. That can be done now or after you’re married.
“Let me look through this and get back to you. I can scan this in so you can take it with you, and send you an email with my thoughts, and then you can decide whether we need to get back together.”
“No problem. If you haven’t gotten an email from me by the end of next week, call me . . .”
Attorney Tim Barkley
The Tim Barkley Law Offices
One Park Avenue
P.O. Box 1136
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