Pitfalls of an Online Prenuptial Agreement
March 15th, 2022
If you’re getting ready to tie the knot, you might be wondering whether you and your soon-to-be spouse should execute a prenuptial agreement. If you searched the internet for information, you might even have come across websites advertising online prenuptial agreements and downloadable templates. While these sites might seem tempting, it’s essential to carefully consider the pitfalls of using an online prenup service. A do-it-yourself (DIY) prenup might be fast and inexpensive, but they can sometimes come with steep and costly consequences later.
What is a Prenuptial Agreement?
A prenuptial agreement — commonly referred to as a “prenup”— is a legal contract entered into by two individuals before they are married. These documents can distinguish separate versus marital property, address issues of property distribution in the event of divorce, and designate responsibility for debts. They are also sometimes used in connection with estate plans, particularly in second or subsequent marriages.
Should I Have Prenup?
Prenuptial agreements aren’t just for high net-worth couples. They’re for anyone who wishes to protect their assets and settle financial issues in advance if their marriage doesn’t work out. Any individual who starts a business before they are married, possesses a substantial amount of wealth, or has children from a previous marriage should seriously consider getting a prenup.
Property acquired before marriage is generally characterized as “separate property,” but complexities can arise if it is commingled with marital assets. In other words, if you owned a company and your spouse made financial contributions or helped it grow, that portion of the business could be deemed marital property and subject to division in a divorce. The same goes for real estate and any other property — if your spouse’s efforts increased its value, they could be entitled to a share. By executing a prenup, these kinds of issues can be avoided.
Disadvantages of an Online Prenuptial Agreement
Marriage is both an emotional and financial commitment. Unfortunately, money can be a significant source of contention among spouses, and financial disputes lead to divorce all too often. Although it’s possible to create a prenup using a legal template online, it’s vital to be aware that it’s usually not a good idea to execute one without the guidance of an attorney. A prenuptial agreement is a complicated legal document — if it isn’t properly drafted and executed, its validity can be challenged in court, defeating its entire purpose.
There are many nuances that must be considered when drafting a prenup that a couple might not know about. Specific legal requirements must also be met for this type of agreement to be enforceable under Oregon law. Critically, if a provision is worded incorrectly, it might not have the effect you intended. With an online prenup, you might save money upfront but end up paying the price at the time you need the protection the most.
By working with an attorney on your prenup, you can ensure that it meets all necessary criteria to withstand litigation. An attorney can draft an agreement that is:
- Valid — Oregon law sets forth certain elements that make a prenup valid. In addition to the mandatory financial disclosure requirement, a prenuptial agreement must be in writing, executed voluntarily, not unconscionable, and be signed by both parties.
- Enforceable — Ensuring that your prenup is enforceable is one of the biggest reasons downloadable online templates can be so risky. A court will scrutinize this agreement during divorce proceedings, so it’s vital to make sure it is executed correctly.
- Fair — Each individual should speak with their own legal counsel who can best advise them as to whether the agreement is fair. An agreement cannot be unreasonably one-sided. But because a court won’t always find that a prenup is unconscionable if it awards more money to one spouse, consulting with an attorney can ensure what you’re signing is in your best legal and financial interests.
- Thorough — Careful drafting and meticulous review of a prenup are crucial. An attorney can ensure all the issues specific to your situation were addressed in the prenuptial agreement and your rights are protected.
While prenups can cover a wide array of issues, there are certain things that can’t be included in these types of contracts. For example, child custody matters cannot be determined by a prenup. Oregon law also prohibits provisions that would reduce or eliminate a child support obligation. Additionally, a clause modifying or eliminating spousal support would not be enforceable if it would cause the supported spouse to be eligible for public assistance.
Are There Advantages to Do-It-Yourself Prenups?
The drawbacks of creating an online prenuptial agreement typically outweigh any advantages. However, contemplating a prenup, do-it-yourself or otherwise, can force a couple to have important discussions about money. Whether an agreement is prepared by an attorney or a couple creates one on their own, full financial disclosure is required. This can help to initiate a conversation that might not otherwise be had about how they will handle bills, expenses, investments, and spending during their marriage.
Clarifying financial expectations before marriage can eliminate the potential for friction that could occur later. The prenup talk can also encourage a couple to take measures that safeguard their future financial stability. However, if you choose to go the online route for your prenup, it’s a good idea to have an experienced attorney review the document to ensure it is legally valid and enforceable.
Contact an Experienced Oregon Prenup Attorney
Executing a prenup can be confusing and overwhelming. A knowledgeable attorney can assist you with navigating the process and draft an agreement that will hold up in court should the need for litigation arise. At Litowich Law, we are dedicated to providing caring counsel and reliable representation for a wide variety of matrimonial matters, including creating and reviewing prenuptial agreements. Located in Salem and serving clients throughout Oregon, we welcome you to contact us for a consultation to learn how we can help.