Prenups: What to Avoid
Prenuptial Agreements: Common Pitfalls and What to Avoid
A prenuptial agreement (prenup) can be an invaluable tool for protecting your financial interests and setting expectations in your marriage. However, drafting and finalizing a prenup isn’t as simple as signing on the dotted line. It’s easy to make missteps that could render the agreement unenforceable or create unnecessary tension in your relationship.
To avoid these pitfalls, it’s important to understand the key considerations at each stage of the process—before, during, and after negotiations. We’ll also explore the role of standstill agreements and how they can be a lifesaver when time is tight.
Before Negotiations: Timing Is Everything
One of the biggest mistakes couples make is waiting until the last minute to discuss their prenup. It’s understandable—after all, weddings are exciting, and the last thing you want is to dampen the mood with serious financial talks. But leaving this discussion too close to the wedding day can backfire.
Imagine trying to finalize an agreement a week before walking down the aisle. You’re already juggling seating charts, last-minute RSVPs, and nerves. Adding prenup negotiations into the mix is a recipe for pressure and rushed decisions. If one partner feels coerced into signing, a court may later find the agreement invalid because it wasn’t entered into voluntarily.
To avoid these issues, start your discussions months in advance. This gives both of you time to reflect, negotiate, and seek legal advice without the looming stress of a wedding deadline. If time does run out, consider a standstill agreement.
What’s a Standstill Agreement?
A standstill agreement is essentially a temporary pause. If you can’t finalize your prenup before the wedding, this agreement can outline your intentions and preserve your legal rights while postponing the detailed negotiations. It lets you move forward with your marriage without sacrificing the opportunity to create a thoughtful, enforceable prenup later.
Standstill agreements are particularly useful because they remove the pressure of a tight deadline. Both partners can take their time to negotiate fairly and with clarity, ensuring the final agreement meets everyone’s needs.
During Negotiations: Avoiding Common Drafting Pitfalls
When it comes to drafting the prenup itself, one of the most important rules is to keep it legally sound. A well-written agreement aligns with Ontario’s family laws and avoids terms that courts are unlikely to enforce.
For example, infidelity clauses might seem like a good idea on paper, but Ontario courts typically won’t uphold them. Similarly, you can’t use a prenup to predetermine custody or access arrangements for children. These decisions must prioritize the best interests of the child at the time of separation, so including such terms is a waste of ink.
Financial fairness is another key consideration. If the agreement includes spousal support terms that would leave one spouse in financial hardship, a court is likely to intervene and set them aside. To avoid these pitfalls, it’s essential to work with a knowledgeable family lawyer who can help draft an agreement that complies with the law while protecting both parties’ interests.
Planning for Life’s Twists and Turns
Here’s another thing to think about: will your prenup still work if you move? Family laws vary across provinces and countries, so an agreement that’s enforceable in Ontario might not hold up elsewhere. If you’re planning a big move, it’s worth consulting legal professionals in your new location. In some cases, updating or renegotiating your prenup may be necessary to align it with local laws.
After the Prenup Is Signed: Don’t Forget About It
Signing the prenup isn’t the final step—it’s more like setting a strong foundation. Over time, circumstances can change, and what seemed fair at the time of signing might no longer make sense.
Perhaps one partner experiences a significant income increase, or the couple welcomes children. In these cases, courts may revisit the terms of the prenup to determine whether it’s still fair and relevant. Regularly reviewing your agreement ensures it keeps up with life’s changes and remains enforceable if needed.
Failing to follow the terms of your prenup can also weaken its enforceability. For example, if the agreement specifies how property is to be managed during the marriage—such as keeping certain assets separate—and one partner commingles those assets (e.g., depositing separate property funds into a joint account), it can undermine the validity of the prenup. A court might question whether the agreement still reflects the parties’ intentions, making it more vulnerable to challenges.
Conclusion
Prenuptial agreements can be an incredible tool for protecting your financial future and creating clarity in your marriage. However, their effectiveness depends on careful planning and thoughtful execution. Start early, avoid unenforceable terms, and ensure your agreement complies with the law.
If time is tight, a standstill agreement can buy you breathing room to negotiate later. And don’t forget to review your prenup periodically to keep it relevant and fair as life evolves.
With open communication and guidance from experienced legal professionals, you can create a prenup that works for both of you, fostering trust and peace of mind as you embark on your married life together.
