What You Need to Know About Prenuptial Agreements in Mississippi
There are as many reasons to enter into a prenuptial agreement as there are people getting married. Maybe your family is insisting you get one to protect a generationally handed down business. Maybe you lost a spouse you were with for decades and you are concerned about your adult children’s inheritance. Maybe you had an awful experience trying to financially separate and then recover after a divorce, and you never want to go through that type of hardship again.
Whatever your reason, prenuptial agreements definitely have their place in the world, and they are by no means a new development in the law or in culture. In fact, anthropologists tell us that couples have been contracting marital rights for thousands of years. In Whoopi Goldberg’s, If Someone Says, “You Complete Me,” Run!, Whoopi gives insight on the subject of prenuptial agreements in Chapter 13 titled “Get the F***ing Prenup.” During an interview with Jimmy Fallon she pontificated:
If you get the prenup there is no argument, if you don’t get divorced then it’s not a problem. If you are going to get divorced, it’s not a problem because a prenup is there. Just do it, shut up and get happy!
Be aware there is such a thing as a bad “f***ing” prenup. Sometimes they hide behind a fancy font, linen paper and “big firm” company seal. Well-intentioned and smart practitioners who do not work in Mississippi marital dissolutions every day find a great form on their extensive firm database and just fill in the blanks, but that’s not what we do at R+E.
A Prenuptial Agreement is just a Contract, and Mississippi Courts Give Great Weight to Contractual Agreements Between Two Parties.
Courts are hesitant to ignore a valid contract between two people who knew what they were doing. A court will only refuse to enforce a prenuptial agreement if it finds the agreement is unfair in at least one of two ways–procedurally or substantively. An agreement is procedurally unfair if, at the time of the agreement’s creation, the two parties had the equal ability to freely agree to the document. For example, a court may find procedural unfairness if one party was refused legal counsel, or refused the ability to review the document properly. An agreement is substantively unfair if, at the time of the agreement’s creation, the terms of the agreement were not fair to both parties. The level of unfairness must be rather high, however. It may not be that one party just made a bad agreement. Rather it must appear to the court no one in their right mind would agree to such terms. If a party can prove either procedural or substantive unfairness, the court may decide to deny the enforcement of the prenup.
The Steps to Create a Valid Prenup are Pretty Simple.
If you are going to have a prenup written in Mississippi, you want it to stand up to judicial scrutiny. First, you cannot write one at the last minute. You and your future spouse both need plenty of time to think about the contract. Second, both sides need independent advice. One lawyer cannot advocate the legal position of two people. They just can’t. Third, there must be full disclosure. Each side must exchange financial data. It is better if the financial data is attached to the contract so years later you can find it. Lastly, the contract should be written in plain language and accompany some simple estate planning.
The best way to make sure your prenup will be rejected by a chancellor is to do it at the last minute. Think about it. Your fiancé has worked for months and months planning for the wedding. She has received dozens of gifts and the honeymoon is planned. She has acknowledged hundreds of well-wishes on her Facebook page, and she has been showing off her ring with beaming excitement. A week before the wedding with pressure from your father or children, as the groom-to-be you say, “Oh yea, there is the one thing we need to do before the wedding…” Bad, bad, bad. You should get the prenup worked out before entering into extensive plans for the wedding.
Another way for your Mississippi prenuptial agreement to fail is by not having independent counsel for both people. Billy Bob can draft the contract for your fiancé, but before you sign it, let someone else look at it and explain it to you. If your fiancé is trying to give you the shaft, you may want to tell them to hit the road.
You must swap financial data. Exchanging your social security earnings statements and a couple years worth of tax returns and an asset/liability statement similar to what you would give to your banker for a loan is imperative. If either you or your fiancé has been divorced, you should exchange your Divorce Judgment as well. You simply must complete due diligence and be fully informed to enter into a contract- especially a marriage contract. Heck, most premarital counselors will tell you everyone needs to be informed about finances prior to the wedding. It is just smart. It is not uncommon for us to hear something like the following in an initial consultation about a divorce…“Well, when we got back from the honeymoon he told me he has $68,000 of credit card debt and he pays his ex-wife $5,000 per month in permanent alimony….”
At Robertson + Easterling, our prenup is a pretty simple document carrying substantial weight upon a divorce or death. Our approach is simple- put the power of creating marital property in the hands of the couple. If it is in the wife’s name, it is hers. If it is in the husband’s name, it is his. If it is in joint names….You got it, it is marital property subject to being divided. Easy peasy. Forget about the complicated aspects of commingling non-marital property, tracing and the family use doctrine. Look at how the account is styled or to whom title is vested and you have your division upon a divorce. Now this is complicated by the fact in Mississippi, you must have a reason or an agreement to get a divorce, but you can read about that in other places on this site.
In summary, a prenup does not have to be a big deal if you follow the correct steps. When you put the power of creating marital property in the hands of the couple and not some stranger wearing a black robe, you win. Hopefully if you enter into a prenup, it will be put in your safe and will never rear its ugly head again, but if it does, you want to get the benefit of your pre-marital intentions.