The Biggest Mistakes With Prenuptial Agreements, According To Divorce Lawyers

When most people hear the word “prenup” (short for prenuptial agreement), they often imagine wealthy couples signing over documents that protect homes, businesses and family money before they get married.

But family law attorneys say the most valuable thing in a prenuptial or postnuptial agreement is often not a particular asset but the conversation behind it.

“The misconception [about a prenup] is that it’s about what a lawyer needs to see in the documents,” said Claudia Cobreiro, a Miami-based family law attorney and founder of Cobreiro Law. “[Rather] it’s about what the client wants the prenup or the postnup to do for them or for their relationship.”

In other words, the best prenups are not just divorce documents. They are relationship documents — agreements that force couples to talk about money, expectations, responsibilities and the realities of building a life together.

The underrated things divorce lawyers want to see in a prenup are not an “infidelity clause” or a long list of flashy provisions. They are the less obvious parts of the process: making sure both people have a voice in creating the agreement and that the financial conversations continue long after the paperwork is signed.

One of the biggest misconceptions about prenups is that they are simply documents designed to protect the person who enters the marriage with more money.

But attorneys say a strong prenup is not about one person protecting what they have while the other person simply agrees to the terms. It is about creating an agreement that reflects both people’s concerns and expectations.

Cobreiro says many people misunderstand prenups because they assume the terms are already predetermined.

“Part of the taboo around these agreements is not only that the conversations and negotiations it takes to draft certain parts of or terms within these documents can be difficult, but also that people feel these documents are foreign to them or that the contents therein are already predetermined for them to a degree,” Cobreiro said.

In reality, she said, prenups are designed to be customized.

“These agreements are completely flexible on what they cover, what they separate, what they do, when they do it, and how they do it,” she said. “They really should be tailored to each couple’s needs, expectations, and desires, both as a couple and as individuals.”

Aaron Thomas, family attorney and founder of Prenups.com, said one of the biggest mistakes he sees is when that flexibility disappears and the prenup becomes more of a negotiation tactic than a mutual plan created by both parties.

“The most common mistake that makes an agreement less effective is that the prenup gets brought up by the wealthier spouse and used purely as a tool to protect that one person’s money,” Thomas said. “They go to a lawyer who drafts a one-sided document that they present to the less-moneyed spouse and ask to sign.”

A stronger prenup, Thomas said, addresses the concerns of both people.

“A good agreement should be a true compromise, where each spouse gets something out of it,” he said.

That balance can also make the agreement stronger if it is ever challenged.

“The best enforceability protection is to avoid having the agreement challenged in the first place,” Thomas said. “An agreement that gives real benefits to both spouses means neither one wants it invalidated.”

Even couples who create thoughtful agreements can run into trouble if the financial conversations stop once the document is finalized.

Thomas said one provision he wishes more couples included is what he calls an “annual shareholders meeting” — a yearly check-in where spouses review their finances together.

“The couple agrees to sit down once a year, walk through a pre-set agenda of financial and non-financial items, and make sure each spouse is fully updated on everything financial, no money secrets,” Thomas said.

The idea may sound more like a corporate meeting than a marriage ritual, but Thomas says it addresses one of the biggest problems he sees in divorce cases: spouses who have spent years operating with completely different understandings of their finances.

“I can’t tell you how many disasters I have seen in divorce cases with couples who never discussed their finances,” he said.

In some cases, one spouse manages the money for decades while the other spouse has little understanding of what accounts exist, what debts have accumulated or whether financial decisions are putting the family’s future at risk.

“Someone comes to me for a divorce, and their spouse has managed all the money for 30-plus years,” Thomas said. “And only when the financial records finally come out do we discover that the spouse gambled away their retirement on penny stocks, or some other financial mismanagement has been happening for decades.”

By that point, the damage may already be done.

“You can’t go back and split up money that’s already been spent or disappeared due to mismanagement,” Thomas said.

That is why Thomas believes regular financial conversations should be viewed as part of the protection a prenup provides — not something separate from it.

“Money is one of those topics that are easy for couples to avoid,” he said. “A set meeting makes it a guaranteed practice rather than something they know they should do but never get around to.”

The purpose of a regular financial check-in, Thomas said, is to make sure money conversations do not only happen when there is already a problem.

“This meeting allows couples to at least have the money talk (and often non-financial conversations as well) at least once a year, and avoid the money conversation only happening in the context of an argument, or worse, during a divorce,” he said.

A prenup can establish expectations for what happens if a marriage ends, but the conversations and financial habits couples build during the marriage can determine whether those issues become problems in the first place.

“The best plan is to do both,” Thomas said. “Draft a prenup that contributes to the health of the relationship.”