What Happens If I Don’t Sign A Prenup?

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What happens if I don’t sign a prenup?

So this is an interesting question — We’re going to assume that this question is coming from the standpoint of someone who is presented with a prenup and doesn’t want to sign it.

So there are a few things to unpack here.

So let’s start with the obvious answer — if you don’t sign a prenup, then there’s no enforceable agreement. No one can force you to sign a prenup. A prenup must be voluntarily signed for it to be enforceable. Now, a good question is What does it mean to voluntarily sign a prenup?

First, it can’t be signed under duress. Meaning, that you can’t hold a gun to someone’s head and make them sign a prenup, right? That goes for every contract. You can’t hold someone’s dog hostage unless they sign the agreement and expect that a court is going to uphold that contract.

You also have to have had the opportunity to meet with an attorney. Some states actually require that both sides have had an attorney for the agreement to be considered enforceable.

And pretty much everywhere, you have to have at least had the opportunity to have met with an attorney whether you actually do or not. I’ll come back to that in a minute.

But the big point here is you cannot be forced to sign a prenup that you don’t want to sign.

• Let’s look at the other side of the equation — If you have a prenup prepared and your fiance won’t sign it, what do you do? Well, you can’t force the other party to sign the document, so your choices are to get married or not to get married. Meaning if the terms of the prenup are important enough to you, then you have to make the decision whether or not to go through with the wedding without the prenup in place. There’s an extreme example of this kind of situation floating out there on the internet — apparently, former NBA player Stephen Jackson was set to get married, he says his fiance claimed she would sign the prenuptial agreement that his attorney had prepared, and he says that they agreed on the terms of the agreement. But apparently, she kept delaying the actual signature, it got pushed back further and further until they were on the day of the wedding and she still hadn’t signed it. So Stephen Jackson calls off the wedding. He’s crying, he’s distraught and then his fiance says ok ok I’ll sign it. But he then says no, it’s too late, if you sign it at this point it’s under duress, so he never goes through with the wedding. I might quibble with that definition of duress, but certainly, it’s not an ideal situation.
• The lesson here is to start the process super early. There are certainly people who spring the prenup on their fiance last minute — if you watch this channel you know I think that is the worst possible thing to do. For one, it could jeopardize the enforceability of the prenup because you didn’t give your future spouse enough time to have it reviewed and negotiate properly, but also because it’s just a horrible thing to do to hide it until the last minute after guests have been invited to the wedding and so on — it’s the worst way to start off a marriage that you hope will last forever. But a prenup done correctly is going to be something that is arrived at jointly, not something that is just prepared by one side and that’s it. You’ve got concerns and interests, and your spouse has concerns and interests as well. A good prenup is a win-win, and yes, that is possible.
• Now — if you’re the person presented with the prenup — recognize that you have the power to negotiate. One of the rules of prenup enforcement is that you have had the opportunity to meet with a lawyer — this means both time and the resources to have an attorney of your choice. Don’t just refuse the prenup — refuse the terms of the prenup. It doesn’t have to be all or nothing. Marriage doesn’t have to mean that you have to lose half of all your assets you accumulated before you met or you leave your spouse penniless if you split up. there’s a world of in-between scenarios where you can arrive at something that is fair in the middle. So if you’re presented with a prenup, and you don’t like the terms, get a lawyer to help you negotiate. Part of a prenup being voluntary is having the opportunity to have a lawyer represent you, and if you can’t afford one, where your fiance is wealthy and you are not, then ask your fiance to pay for you to hire a lawyer of your choice. That is absolutely a reasonable request, and they should probably comply if they want the agreement to be upheld down the line.