I saw an article this morning about people who brought their digital platform to prepare prenups to the show Shark Tank.  I haven’t viewed their site and have no idea whether it is good or bad.  But haven’t we all heard tales of woe where things have gone horribly wrong because people got wills, contracts and other legal forms from a website, without the use of lawyers, much less, State specific lawyers?  A rationale given for the site was that many people, particularly millennials, may seek a way for them to negotiate directly with their partners about prenups without having to first hire a lawyer.

Prenuptial agreements are important documents.  Often they are very technical and one size does not fit all.  They are particularly important to protect family wealth, inheritances (or potential inheritances), premarital businesses and assets, etc. For second marriages, people often want prenups to protect their assets for their children of a prior marriage.  Often, the first thing that happens in a divorce is that the disadvantaged spouse attacks the prenup, almost reflexively, because why not shoot your shot to try to get more.  The last thing that you want to do is think that you are protected by a document that is defective, if not unenforceable on its face.  I have litigated the enforceability of many poorly drafted prenuptial agreements, including ones done by the parties from the internet, and in most cases, it doesn’t end well for the person with the assets to protect.

As I said, though many if not most states follow the Uniform Premarital Agreement Act in one way or another, there are often state specific requirements.  There are also nuances in the law, from state to state, wherein remedies available in one state (such as a waiver of interim support or counsel fees pending a divorce), are not available in all states.  There may also be nuances regarding the sufficiency of disclosures, the technicalities/formalities regarding execution, etc.

Moreover, the suggestion that people should negotiate amongst themselves, before they go to lawyers to come up with an agreement that can just be written up seems shortsighted at best.  If the parties don’t know the law, they don’t no what they might be entitled to, what they are waiving, whether what they are agreeing to is fair or appropriate, etc.  Most prenups involve one of both parties waiving rights they would have under law in the absence of an agreement.  Black letter law that you learn in first year law school contracts class says that for a waiver to be enforceable, it has to be knowing.   The law in most states is similar.  How can you have a knowing waiver if you don’t know what the law is?  Moreover, I have seen situations in both divorce and prenup negotiations, where parties thought that they had deal, only for it to blow up after they spoke to lawyers and found out that it was unfair, improper, unenforceable, etc.

Also, because people don’t have crystal balls, or they are blissfully unaware and in love, they don’t consider that they will ever actually have to look at the prenup again, they don’t consider what the fairness might be, years down the road, at the time of a divorce.  My partner, Mark Ashton, from our Chester County, Pennsylvania office wrote about this on November 30 of this year on our Pennsylvania Family Law Blog in a post entitled Engagement Season is Prenuptial Season.  In that post, he talks about a cautionary tale of a client, who ignored the advice because she was young and in love, and without considering the practical consequences of what would happen if she left her career to raise children, which is a common story.

I suppose that if you have nothing and don’t expect to ever have anything, maybe there’s an app for that.  But that person probably doesn’t need a prenup in the first place.  That said, in most cases, if it is important enough to have a prenup, it makes sense to have a lawyer and do it right.

Here is a link for an advice piece that our group has put out entitled Considering a Prenuptial Agreement.

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Eric S. Solotoff, Partner, Fox Rothschild LLP    Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or esolotoff@foxrothschild.com.

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