A divorce lawyer has revealed the two mistakes people always make with their prenuptial agreements – and why you should always invest in a good lawyer.
James Sexton is a New York-based family law attorney and author with over 20 years of experience in the industry.
He recently made a podcast with computer scientist Lex Fridman and discussed the intricacies of prenuptial agreements and why people should never include fidelity or sunset clauses.
A prenuptial agreement is a contract written by a couple before they get married. Typically, it lists all the assets each person owns, including any debts, and specifies how these will be divided in the event of a divorce.
“Fidelity” clauses mean that the marriage contract is void if one person is unfaithful, and a “sunset” clause defines the time after which the terms of the agreement expire.
James Sexton (pictured) is a New York-based family law attorney and author with more than 20 years of experience in the industry.
“I discourage people from introducing fidelity clauses and sunset clauses,” Mr Sexton said.
For example, some prenups typically waive alimony after a divorce – but a fidelity clause may stipulate that the injured party will receive a particular amount due to the other’s infidelity.
“The intention is to deter the person from cheating, but that just creates an interesting legal battle for lawyers.”
“How can you prove they cheated or not? What constitutes cheating? Is an emotional affair cheating? What about oral sex, and how do you prove it?
Mr Sexton claimed receipts such as hotel bookings do not hold up in court – because the only thing they prove is that two people were in a room together, not that they had sex .
On the other hand, a sunset clause could stipulate that the prenup will expire after 15 years of marriage.
“It creates a very uncomfortable thought experiment that people have to go through before the contract expires,” the lawyer said.
“You have to ask yourself, ‘Am I so happy in this relationship that I’m willing to take all my possessions before marriage and throw them in the pot now?’ Otherwise, I have six months to divorce.
He continued: “If you get married, start a business worth $100 million, and under your prenup, it’s your separate property. But there is a sunset clause which states that your prenup expires in 15 years. At 14 years and six months, you will need to ask yourself serious questions about how the relationship will evolve in ten years.
Many still disagreed with Mr Sexton’s advice.
“You might as well not get a prenup if you don’t include a fidelity clause,” one woman said.
“It’s a red flag if the partner doesn’t want a loyalty clause!” another wrote.
“A lawyer once told me that a clause is only as bad as the details you put into it,” one man said.
But others thanked him for his knowledge.
“A prenup is not just for infidelity, but it also covers separate assets before marriage, financial agreements, support if one decides to become a stay-at-home parent, and much more “said one of them.
