Happy Valentine’s Day: Here’s Your Tennessee Prenuptial Agreement to Sign

Getting a Prenuptial Agreement Signed May Be Much More Difficult Than Getting it Drafted

Advice from Memphis, Tennessee divorce attorney Miles Mason, Sr.

Also, see DeSoto Magazine Features Mason on Prenuptial Agreements in which Miles Mason, Sr. shared some of his thoughts on why future spouses may both want such an agreement before getting married.

Some people may tell you that it’s easier to get root canal while others will tell you that if you have to have a prenup, then you don’t trust each other and shouldn’t be married. Luckily, neither one is necessarily the case. In some cases, there will be no problem getting your fiancé to agree, while in other cases, no matter how delicately you bring up the topic of a prenup, your partner or fiancé may decide that this relationship is not for him or her. In cases where your fiancé agrees to a prenup, you will have a document that can bring you both peace of mind during your marriage. For sake of clarity, reference is made to a partner or fiancé as “fiancé.” He or she is referred to as “she,” although the suggestions herein apply equally to men and women.

There is no proper or “correct” way to get a prenup. If someone is going to be offended by it, she may be offended no matter what, even if you assure her it isn’t personal. However, you can soften the blow by using some of the following tips. There are no guarantees, so if someone is going to bolt, it’s best to find out before the wedding. Nevertheless, even if you’re not convinced a prenup is a good idea, the following may help convince you as well.

How to convince your fiancé that a prenup is in both your interests

A prenup is like an insurance policy for a marriage. There is no guarantee that a marriage is going to work out; this is based on statistics and reality. That’s just a cold, hard fact. Getting a prenup, however, doesn’t mean you think the marriage will end in divorce. Marriage is a contract, and so is this. It ensures that you will have your assets and your family’s assets protected, some of which may include inheritances or family businesses. You will want to protect these in the event of divorce or death. If, for example, your fiancé has a child from a previous marriage, will you want this inheritance or family business to end up with the child? A prenup will spell out what happens to your inheritance or family business.

First and foremost, let your fiancé know you love her.  Let her know that if she had suggested a prenup, you would have welcomed the chance to sign it. Assure her that you will indeed sign a prenup that gives her assets the same protection as you’re getting. In other words, a prenup is not a one-sided contract; if it is, most likely it will be set aside by the court. It has to be fair and equitable or it will not be enforced. Let your fiancé know that the court is there to make sure there is no duress or what is referred to as “overreaching.” The agreement has to be something that no judge is going to look at and find unconscionable. Advise your fiancé that you will sign, too, and that you are both just being smart by protecting your rights in the future.

How do you get your fiancé to sign a Tennessee prenuptial agreement or “prenup”?

You don’t have to be a Rockefeller to have a prenup. While you may be struggling now, no one knows what the future holds for you and your fiancé. You could strike it rich or she could become the next host of the Today Show. A prenup is designed to plan for the future. Let her know you are willing to prepare for the future with your fiancé by signing this important document. Tell her the prenup will give you both peace of mind as you face your financial partnership together.

Discuss your prenup early

What qualifies as early? You certainly want the prenup signed before the wedding date. You’ll have to make the decision whether to discuss this delicate topic before you get engaged or after, but it is wise to discuss it before the wedding invitations go out. This way, if she balks, you won’t have a lot of phone calls to make if the invitations are still in the box.

Likewise, discussing a prenup right after you propose or give her the ring is bound to pull the rug out from under her feet. Experts suggest you wait a little bit, such as a week or more before bringing it up.

How and when do you ask your fiancé to sign one? Some matrimonial attorneys suggest you ask when you are discussing finances, as the prenup is mostly for the purpose of protecting money. You can discuss it before you and your fiancé are engaged. This way you will know if this will be an issue in the future or if there will be a meeting of the minds. If you wait until after you are engaged, it’s not a good idea to discuss this topic while having a romantic dinner; it’s sure to change the mood. However, if you bring this up in an honest and open way, make it part of a general discussion about finances. You can let your fiancé know that this agreement will protect her assets and her future as well as yours. Let her know you aren’t looking to burn her — letting her know that you are looking out for her may make her understand that she will be protected as much as you will.

Tennessee Prenuptial Agreements Aren’t Always About Trust

When you are together, as in face-to-face — definitely not over the phone, in emails, texts, or other social media — you may want to bring up the topic when you are discussing everyday occurrences, such as your future together, your family, her family, and so on. Saying “we need to talk” may be the surest way to get an “uh-oh” from your fiancé. Certainly, you would be well advised not to raise the topic when giving her the ring. It’s just not a smart move.

Let her know this is not an issue of trust. Tell her you trust her completely. You may want to ask how she would feel if she starts a successful business and then, if the marriage doesn’t work, you would be entitled to half of it without a prenup. She may be more agreeable to signing an agreement which protects this contingency, as your comment shows you’re willing to give up rights that the state might otherwise give you. Tell her that prenups do not mean that one party gets nothing and the other gets it all; tell her that this agreement has to be fair and will be fair to both of you.

You can also let her know that this is a good thing to discuss now, when you are rational, instead of years from now, if things should ever change. Let her know there’s more of a likelihood that fairness will prevail now instead of later on because you can plan your financial future together. Tell her it can also protect her from having to pay for your debts if things somehow don’t work out. After all, your marriage is a combination of your love for each other and setting out on a financial life together. A prenup can prepare both of you for your financial future.

An overview of prenup requirements in Tennessee

While this article does not claim to provide all of the requirements needed for a valid prenup in Tennessee, it highlights some of the basic requirements for making a fair and valid prenup. Some tips for having a relatively hassle-free signing and some guidelines for the prenup are as follows:

• You should have separate attorneys for the prenup. Offer to pay your fiancé’s attorney. When using a forensic accountant, offer to pay for your fiancé’s forensic accountant to review the financial statements and any other necessary documents.  Consider not giving your fiancé an “allowance” or limit as to how much she can spend on either the attorney or the forensic accountant. Agree to pay for them and keep your promise.
• Do not choose your fiancé’s attorney or forensic accountant. Let her choose her own. This way she will feel she hasn’t given you control of the agreement. Even if the lawyer and accountant are truly independent, a court could look negatively upon situations where attorneys and/or forensic accountants were hand-picked by the person seeking the prenup.  Avoid anything that could add risk to the prenup being declared invalid or unenforceable.  The ability of your fiancé to hand-pick the professionals of her choice will not only help her see that her rights are protected but it will also be a good idea when the court is reviewing the agreement later on to see that there was nothing unfair about it.
• Discuss the prenup in as much depth as possible before seeing the attorneys. This will ultimately reduce the amount of time spent with the attorneys as well as reducing the legal fees. But, you can’t give your future spouse legal advice.  So, don’t put yourself in a position of being accused of acting like her lawyer.
• Have the prenup drafted well in advance of the wedding. This means months ahead of time, not just a few weeks. The closer the signing is to the wedding, the more it could look like you are forcing her to sign it. Make sure all financial disclosures are detailed and drafted well in advance of the wedding.
• Make sure to disclose all financial details before the prenup is made. Make sure to produce a complete set of financial statements, including a balance sheet or net worth statement, income statements, and tax returns for at least two to five years. If either of you took out a loan within two years before the prenup, consider providing the application and other documents as well.
• Provide a signed waiver of confidentiality to your fiancé so that she can view all financial records that your CPA or financial advisor has or will have in his possession.
• Offer to pay to value your business or other assets if requested. Be honest and fairly disclose all financial information to your fiancé.
• Keep the prenup simple. You don’t want to have an agreement that only attorneys can interpret. This helps to ensure that the prenup will be valid because it shows that the agreement was easy to understand and that both sides will have understood it.
• Consider professionally videotaping the signing in the presence of both attorneys; this allows a court to see that the agreement was not signed under duress.
• If your fiancé chooses not to hire an attorney, provide a clause in the prenup that states that your fiancé was advised to seek legal counsel but chose not to. Also include a provision that states that your lawyer represents you only and not your fiancé. Sign this paragraph separately.
• Attach a list of the property or businesses that are described, disclosed, and included in the prenup. Indicate in the prenup that this agreement applies only to the listed properties or businesses, if desired.
• Include a provision which states that if one part of the prenup is found to be invalid, the intent of the parties is to enforce the rest of the prenup without the invalid clause.
• Sign multiples copies, notarize the signatures, and discuss with your lawyer whether it should be filed in the local register’s office as a public document.
• If the prenup contains a waiver of spousal rights upon death of either party, make sure you include a detailed explanation of the rights that are to be waived.  Consider asking your estate planning attorney and financial advisor to review it as well.
• Keep in mind that the more equal or fair the prenup is, the less likely a court will find it unenforceable.

As with any legal document, consult your attorney for advice about your prenup. Make sure you use an experienced family lawyer to draft your prenup, as other types of attorneys may not be as familiar with them.

Try to keep the atmosphere light between you and your fiancé so that your fiancé will be comfortable signing the agreement and won’t back out at the last minute. It helps to keep a sense of humor even at times like this. After all, you are planning to spend your life with your fiancé, and you want her to be able to trust you and your intentions. While you can approach a prenup in a business-like fashion, remember to assure your fiancé that you love her, that this is what is best for both of you, and that once the agreement is complete, it can be put behind you so you can enjoy the rest of your lives together.

For more information, read Tennessee Prenuptial Agreement Pros and Cons in Family & Divorce Law.  For updates, analysis, and case summaries, see the Prenuptial Agreement category at the MemphisDivorce.com Tennessee Family Law Blog.  A Memphis divorce lawyer from the Miles Mason Family Law Group can help.  To schedule your confidential consultation, call us today at (901) 683-1850.