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Why aren't prenups cheap? What makes prenups expensive?

August 6, 2024

Why Aren't Prenups Cheap?

A heterosexual couple smiles at each other while seated at a café table.

Prenups (and postnups) are, at their most basic, a contract between two people who make mutual promises to commit to certain behaviors and to avoid other behaviors, usually those involving finances, property, moving out during a separation, taxes, custody of pets, and plenty more.


Why does this basic contract cost so much money for drafting and guidance by an attorney or a mediator, especially when a "prenup in a can" is easily available online for a cheap fee?


1.    Customized Contracts


You are paying for the protection that comes from a contract tailored to your unique situation and goals. For example, drafting may be slightly different for people who are more concerned about isolating each other from the partners' debts or lawsuits than an older couple who is mainly concerned with keeping premarital assets for their children from previous marriages. 


You are paying for the years of legal training and career experience that inform the drafting of your prenup or postnup. For example, JustPrenups includes a number of terms from different statues and from case law over the years to ensure that there is no ambiguity in the contract's meaning.


Clear contracts result in more predictable outcomes. A cheap prenup may not be able to provide this security. Is that really a risk you want to take with your family business?


A generic downloaded form does not take an inventory of your needs, your problem areas, and your future plans. Most importantly, it does not assist you fully with disclosure, which is the cornerstone of a marital agreement's strength and enforceability. When prenups are set aside or invalidated, it is usually based on disclosure or timing issues not on the words of the contract itself.


Disclosure is the process of sharing information regarding your assets (e.g., real estate, stock, retirement funds) and liabilities (e.g., debt, alimony payments, etc.) with each other so that both partners may make an "informed consent" to enter into the marriage and into the prenup: both know what the other can offer, and both still choose the terms of the prenup. If disclosure is incomplete, fraudulent, misleading, or in any way inaccurate - even if unintentionally - your prenup may be vulnerable to attack later on in divorce court. 


2. The Crystal Ball


Prenups, postnups, and wills occupy an unusual space in law practice: they are legal documents with unusual longevity. In real estate law, the most long-term leases tend to cap at around ten years, for example. But a prenup can potentially last through an entire adult lifetime.


We have young clients in their mid-twenties who intend to spend their lives together. Imagine a document drafted at age 25 that is enforced at age 75 if, after 50 years of marriage, the couple decides to divorce. The lawyer or mediator has been asked to draft for circumstances 50 years into the future, which includes anticipating a number of unknowns in the couple’s life as well as future changes in statutes, case law, and social policy. You are paying for this level of expertise and guidance.


The mediator or attorney bears the burden of liability from managing clients who bring all these unknowns because of the extended timeframe.


3. Storage and Cyber Security


All law firms must pay for data storage, usually both physically for paper files and digitally for scans and online-only documents.


However, law firms that oversee prenup/postnup or estates must care for data for decades as a prenup or a will looks forward, including up to and after the death of the client to ensure the proper disposition of assets, debts, and other concerns as the client had intended. These firms are committed to storage and security for many more years per client than other law firms that handle, for example, a slip and fall case that looks backward at a specific timeframe and that concludes with a specific result. 


Additionally, the attorney must protect documents and the clients’ best interests after her own death and/or incapacity: in law, an inventory attorney is the person selected by the practitioner to assume control of a firm if/when that attorney is unable to supervise the daily requirements of the firm. The inventory lawyer contacts clients to ascertain their next steps and to preserve the security of stored data and the duty of confidentiality.


4. Whisper Down the Lane


If the couple chooses representation instead of choosing a mediated prenup, both sides must be represented by an attorney. One attorney cannot represent them both. This is specifically prohibited by nearly every State’s Bar Association.


Remember that in a representation scenario, the attorneys charge for time spent with each client individually as well as for time working on drafting, reviewing edits, and floating drafts back and forth until the parties agree on a final version. The representation route involves four people playing “whisper down the lane” as they work toward a finalized draft, and every whisper is billed by the time increment.


The attorneys must advocate and fight for you, and if you choose a different route than they advise…


Representation is an inherently adversarial endeavor.


An attorney commits ethically and strategically to advocating zealously for *one* party. The attorney is pitted against that party’s competing circumstances and against any party who has or who may have a conflicting interest. A prenup contemplates a time when the spouses are no longer acting in each other’s interests.


When the attorney for fiancé X drafts the prenup, this attorney advances the interests of only fiancé X, not fiancé Y. When fiancé Y’s attorney receives fiancé X’s draft, fiancé Y’s attorney will usually spend time - at an hourly fee - bringing the content more into alignment with fiancé Y’s best outcomes, and this draft will bounce back to fiancé X’s attorney. Fiancés X and Y may both be financially prepared to handle several rounds of drafting and consulting at an hourly rate, but what about the strain on the marriage of each side looking out for number one via two adversarial attorneys?


JustPrenups offers the alternative to representation: the mediated prenup or postnup, which is priced at a flat fee for either the entire process or for most of the work. The flat fee usually provides considerable savings to clients as opposed to hiring separate attorneys for each partner’s representation. Some of our clients with businesses, extensive assets, and/or a complicated legal picture may require some additional hourly work on top of the flat fee, but overall, this approach to a mediated prenup is usually much less expensive than hiring an attorney for each partner on an hourly basis.


Find the Best Option for You


You can learn more about your options, such as the differences between a mediated prenup and traditional representation, through scheduling a free consultation. Complete our checklist, and we can meet on Zoom during your lunch or dinner break. 

 

Warning: All posts on this website and its partner website, DADvocacy.com, contain general information about legal matters for broad educational purposes only. This information is not legal advice and should not be treated as such. This blog post does not create any attorney-client relationship between the reader and the DADvocacy™ Law Firm or between the reader and JustPrenups.com.


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By 7107328235 March 27, 2025
A prenuptial or postnuptial agreement can save your business. Consider two dry cleaners, Ricky and Fred. Both thought they would be married to their wives until “death do they part.” Unfortunately, they both ended up divorced. Ricky walked out of divorce court personally and professionally ruined. Fred, while emotionally drained, was able to maintain and grow his successful business. Why the different outcomes? Ricky’s Story Ricky owned a dry cleaning business with Lucy, his wife of 19 years. Ricky was in charge of all aspects of the business, but Lucy did manage the company’s payroll and vendors part-time. Occasionally, she worked the front counter. For the most part, Lucy raised the children and cared for her elderly parents. When they decided to divorce, Ricky and Lucy were still civil and wanted their divorce to be amicable. Ricky and Lucy worked together, without lawyers, to craft a plan for sharing time with their teenage sons, and for sharing the family’s expenses. They also agreed to sell their house after their youngest son graduated high school. After a few months, and at the urging of a well-intentioned friend, Lucy hired a lawyer to write up the couples’ plan. Lucy’s main goal was to make sure the divorce ended fairly for her children. The lawyer, however, believed that since any small business owner could hide income, assets, or a company’s true value, then Ricky must be doing that too. Even though Lucy had a base of knowledge of the business’s finances, she trusted her lawyer and figured that he knew better. So, she agreed to his “scorched earth” strategy to protect her children. What is a “scorched earth strategy”? This is a common tactic to squeeze a business owner into a large and early settlement. The lawyer hires an accountant, and they go after every scrap of information and document pertaining to the company’s assets and liabilities, and they question it all—every argument and angle of attack is fair game. Much of the cost of providing the information and documents, and defending business decisions, must be paid by the business. Scared and desperate, Ricky lawyered up too. Unfortunately, Ricky’s lawyer couldn’t advise him on the settlement terms proposed by Lucy’s lawyer without conducting his own analysis of the company’s voluminous records. Much of the paper work involved in operating a dry cleaning business was foreign to him, and the stringent environmental regulations and reporting was overwhelming. Ricky’s lawyer had to hire his own accountant to help value the business for the divorce. Ricky and Lucy were now far from civil with one another, and the mud began to fly. Faced with dueling accountants, complicated and conflicting arguments about the business’s finances and value, and accusations against Ricky of financial wrongdoing, the family court judge appointed an independent forensic accountant to advise the court. The independent accountant saw that the business, which was the couple’s biggest asset, was crumbling because the ugly divorce was keeping Ricky from focusing on the business. The accountant was also worried about the accusations of financial wrongdoing by Ricky. So, on the independent accountant’s recommendation, the court appointed a receiver to operate and protect the dry cleaning business. Ricky and Lucy were now paying six different professionals, and trial was still months away. The receiver discovered that the company’s records did not comply with dry cleaning waste disposal regulations, and reported the non-compliance to government authorities. Ricky and Lucy blamed each other for the missing paperwork, and the sour relationship between them stalled and ultimately prevented joint efforts at an amnesty program and damage control. The business began to accrue daily statutory fines, employees were laid off, debts mounted, and the business eventually shut its doors while Ricky and Lucy continued to fight in divorce court. A year later, with no business to provide income for Ricky or Lucy, Ricky agreed to settle by paying Lucy more than half of his share of the house. Lucy accepted the offer, even though it was smaller then what she expected originally, because her share of the house was pledged to pay her lawyer’s fees. Fred’s Story Fred was married to Ethel for 22 years, and they have a daughter. Like Ricky and Lucy, Fred ran the business while Ethel was involved part-time in just certain aspects. But unlike Ricky and Lucy, when Fred bought his dry cleaning business nine years earlier, Fred and Ethel signed a postnuptial agreement to protect each other in case of divorce. The attorney-drafted agreement laid out a strict structure for evaluating and dividing the business, and for determining Fred’s true income for spousal and child support calculations. It identified and limited the financial information and documents that the business would have to disclose. It also required that the couple use a single neutral accountant (who would be paid from marital property and not by the company), to gather and evaluate that financial information and documentation. Early in the divorce, Ethel agreed that the postnuptial agreement was valid. She waived any right to ask the court to force the company to disclose more information or documents than described in the postnuptial agreement. This entitled Ethel to an immediate, fair, and higher award of support, thanks to a provision that she and Fred put in the agreement to encourage a quick resolution. Within a month, Fred and Ethel’s divorce was finalized, with minimal attorneys’ and accountant fees, and with no interference or intrusion into the dry cleaning business or operations. How could two similarly situated businesses and families leave divorce court with such different results? The first story is horrifying, but exceedingly common. Many states have onerous disclosure requirements that unnecessarily burden the time and finances of a small business. Unscrupulous divorce lawyers are trained to hone in and target a business owner’s fear of having the business’s confidential and financial information exposed to the world, to induce an early and usually unfair settlement. Fair and careful divorce lawyers will also want extensive company records, because they fear being liable for giving bad advice if they make recommendations without investigating the whole picture themselves. Either way, good lawyer or a bad one, smart judge or not, a case involving a small business can be very costly. The best way to avoid being a Ricky, is to get a prenuptial or postnuptial agreement like Fred. A good prenuptial or postnuptial agreement can render the most intrusive and damaging financial disclosures unnecessary, and can limit or attribute the related costs away from the business. In some situations, as shown above, they can save the business itself. If Ricky had a prenuptial or postnuptial agreement in place, maybe a receiver would not have been necessary, and Ricky and Lucy could have resolved the business’s regulatory problems confidentially without going out of business. Ricky and Fred were not wrong to believe in their marriages. A life-long commitment is not fanciful; it is a hopeful and beautiful goal. Most couples think they will reach that goal and that other couples will fill our country’s depressing divorce statistics. But consider this, we buy life insurance, install security systems, and wear seat belts “just in case.” They give us security even if we think that odds will always be in our favor. A careful and thorough prenuptial or postnuptial agreement can provide you, your spouse, and your business with security that all will be protected in a divorce, and that years of building a life and a business will not be burned to the ground. Chantale Suttle is the Managing Attorney and Founder of DADvocacy™ Law Firm, which is headquartered in Miami, Florida. She has been in the exclusive practice of family law for over 21 years and has served countless small business owners in divorce court. Drafting prenuptial and postnuptial agreements for small business owners is her favorite work.
A couple sits on a bench as one person reaches out to the other who is turned away.
By 7107328235 January 15, 2025
Your fiancé or fiancée presented you with a prenuptial draft: will you sign it before you hear wedding bells? Now you need a review by an attorney to ensure that your assets and your future security are protected: welcome to JustPrenups' prenup review! JustPrenups now offers UPLOADR: quickly share your prenup draft easily from any device in multiples format through UPLOADR on our site - no scanning, no email. Once we receive your prenup draft, an attorney examines the prenup that you received and then meets with you for a free consultation on Zoom. We hold your document and its data in confidence, even if you don't retain us, per our ethical requirements.
A couple walks along a Florida beach by the water in sunshine.
By 7107328235 December 26, 2024
Florida is a quirky place full of contrasts, and so is its family law. In particular, recent updates to Florida family law have changed the rules for alimony in Florida prenups. If your prenuptial agreement doesn't follow these changed rules, your prenup may not be valid and enforceable; as a result, you may be facing high financial stakes in divorce litigation that may put your assets at risk.
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