Does a Prenup or Postnup Have to Be Fair?
One of the most interesting and complex questions we get regarding prenuptial and postnuptial agreements is whether or not they are required to be “fair.”
The subject is not simple to address but is certainly worth exploring.
Let’s start with the term “fair.” In legal terms, the word unconscionable is often used when describing something that is intentionally unfair. An agreement that has unconscionable provisions, ones that are clearly one-sided, will likely be determined to be unenforceable. Likewise, if the provisions of a prenuptial or postnuptial agreement are unethical or illegal, they may also be deemed unconscionable.
That being said, a prenup or postnup can’t be crafted to be “unconscionable” or heavily slanted toward one party or the other. Does that, however, mean that it needs to be fair?
It is important to note that prenups and postnups should be prepared without pressure or coercion. This is one of the reasons our law firm has a policy of trying to ensure such agreements are executed at least 30 days prior to marriage. Such agreements can’t be executed while under the influence of drugs or alcohol, and each party should have their own competent legal representation. This means that regulations are already in place to make sure prenup and postnup agreements are created and agreed to in an open and fair atmosphere.
So if the provisions of a postnup or prenup agreement can’t be unconscionable and rules are already in place to ensure they are not agreed to under duress or without proper legal guidance, doesn’t that mean they have to be fair?
It still boils down to what one feels is “fair”.
A prenup agreement should be equitable and mutually agreed to. That doesn’t mean it has to be equal.
Part of the purpose of a prenup or postnup is to protect individual rights and assets. Not everyone has assets of equal value. If one party, for example, has sizable investments or significant equity in real estate, they may want to protect those premarital assets through a prenup or postnup. Many would consider that fair, although it may not be equal.
So while a prenup or postnup is not required to be “fair”, it should be prepared in an open and honest atmosphere. There needs to be transparency in financial matters, and the agreement should be mutual and respectful. When properly prepared, a prenup or postnup agreement can help build a foundation of understanding heading into marriage.
The reality is that every relationship is different, and few couples are exactly equal when it comes to income and assets. There may be real estate involved, an inheritance, or even a pet. When a business is involved, it increases the importance of a marital agreement. These agreements can be critical in a relationship.
If you have questions about a prenup or postnup agreement or are in search of an experienced Tampa, Florida, family law attorney, we encourage you to reach out to us. We offer a no-obligation initial consultation. We can answer your questions and help set you upon the right path.
We would consider it a privilege to work with you.
If you have questions about a prenup agreement or a postnup agreement or require legal assistance in other areas of Family Law in Tampa, Florida such as high asset divorce you may always contact Damien McKinney of The McKinney Law Group to discuss your case further. He can be reached by phone at 813-428-3400 or by e-mail at [email protected].
We now offer online prenuptial agreements. Contact us to inquire further about our online prenup option.