Prenuptial Agreement – What Is It and Should You Consider It

Learn the basics of prenuptial agreements, how they work, and when you should consider it.

Prenuptial Agreement

It might be that you have some idea of what a prenuptial agreement is, but you aren’t sure what it entails or why you should even consider one.

In the past, they had something of a reputation for only being used by the very wealthy, but that’s no longer the case. They also, unfortunately, have something of a reputation for being unromantic. However, in recent years, especially amongst millennials, the stigma around prenuptial agreement has begun to change.

Planning for the end of your marriage before you’ve even tied the knot may not be the most romantic thing to do, but it is wise to safeguard yourself, especially if you have significant assets. Still, prenups aren’t for everyone, but by taking a little time to understand what they are, you can make a more informed decision about whether or not a prenuptial agreement is suitable for you.

What is a Prenuptial Agreement?

A prenuptial agreement, also called a premarital agreement or antenuptial agreement, is a contract between two people before they get married. The purpose of the contract is to define each person’s property and financial rights in the event of a divorce or death. A valid prenuptial contract needs to be in writing and include both parties’ signatures to be enforceable.

Prenuptial agreements are governed by state and federal laws, which vary from state to state. In general, however, the Uniform Premarital Agreement Act (UPAA) provides a framework for creating and enforcing prenuptial agreements.

While prenuptial agreements are not required by law, they can save a lot of time, money, and heartache.

What is Covered by a Prenuptial Agreement?

A prenuptial agreement can cover many things. Couples can choose to include or exclude any number of items, but some common things that are often addressed in prenups include:

Separate Property

Prenuptial agreements can define what is considered to be separate property, which is any property that either party owned prior to the marriage. This can include things like a house , a car, investments, or inheritances.

By defining what is considered to be separate property, such an agreement can help to ensure that this property remains in the owners’ possession in a divorce decree rather than considered marital property.

Marital property is property acquired during the marriage, so if the couple divorces, this is what would be subjected to property division. Marital assets can include things like matrimonial property, cars, jewelry, or furniture that is purchased during the marriage.

Premarital Debt

Another common issue addressed in premarital agreements is premarital debt. This can include things like student loans, credit card debt, or any other debts that either party may have incurred before the marriage.

In some cases, couples may choose to include a provision stating that each party is responsible for their own debt. In other cases, they may agree to take on joint responsibility for the debt. This is something that should be carefully considered before including it in a prenup since it can have a significant impact on both parties’ finances.

Alimony and Support

Prenuptial agreements can also address the issue of alimony (sometimes called spousal support or maintenance). Alimony is financial support paid by one spouse to another after separation or divorce.

In some cases, a prenuptial agreement may state that neither party will be required to pay alimony or spousal support in the event of a divorce.

The prenuptial agreement may state that the higher wealth individual will pay alimony to the lower income individual for a set period of time after the divorce. Or that they will be required to pay alimony or support if certain circumstances are met, such as if the marriage lasts for a certain number of years.

However, depending on the state’s laws, a judge can still rule on alimony and support during a divorce proceeding if they believe it is necessary, even if the prenuptial agreement states otherwise.

Financial Responsibilities

Prenuptial agreements can outline each spouse’s financial responsibilities during marriage. This can include managing the finances or saving for retirement. Sometimes couples may choose to have a joint account for expenses. In other cases, they may keep their finances separate.

Prenuptial agreements can’t be used to address non-financial responsibilities, so if you want to include things like who will take out the trash or do the laundry, you are out of luck!

Child Custody and Support

Premarital agreements cannot address child custody or child support because those issues must be decided based on what is in the best interests of the child. However, a prenuptial agreement can provide guidance to the court on how the couple would like child support and custody arrangements to be handled in the event of a divorce.

Why Would I Need a Prenuptial Agreement?

The truth is that a prenup isn’t for everyone; a young couple with minimal assets and no children probably doesn’t need one. On the other hand, if you’re getting married later in life, have kids from a previous relationship, own a business or property, or have significant savings, a prenup can be an excellent way to protect your interests in the event of a divorce.

Own a Business

A prenuptial agreement can protect your interests if you own a business or property. For example, if you have a family business that you want to keep in the family, a prenup can ensure that your spouse doesn’t have any claim to it in the event of a divorce.

One Party Earns Significantly Less Money

A prenuptial agreement can also be beneficial for couples where one party earns significantly less money than the other. The prenup can protect the higher-earning spouse’s assets if circumstances lead to a divorce. For the lower earner, having clarity on what assets they would receive in a divorce can provide some peace of mind.

You’ve Been Previously Married

If you’ve been married before, you might be more cautious the second time, especially if you went through a lengthy and costly divorce or felt your previous spouse took advantage of you financially. Obviously, it should be clarified that this is not a lack of trust in your future husband or wife but rather a precautionary measure to protect both parties.

One of the Parties is a Stay-at-Home Parent

If one person sacrifices their career to stay home and raise children, a prenuptial agreement can protect their financial interests and provide some stability for the future. This is especially important if the couple decides to divorce after many years of marriage when the stay-at-home parent would likely have difficulty reentering the workforce.

The Right to Privacy

Confidentiality clauses can be added to prenup agreements to protect the privacy of both parties. The parties can agree that without the written permission of the other party, neither will share any confidential information about the marriage, including financial information, with anyone outside the relationship. This can be important for high-profile couples who want to keep their finances private or for couples who simply want to keep their business to themselves.

You Want to Keep Things Fair

A prenuptial agreement doesn’t have to be one-sided; it can actually be a way to keep things fair. For example, if both parties have significant assets, a prenup can ensure that each person walks away with what they brought into the marriage.

Factors That Could Make a Premarital Agreement Invalid

A premarital agreement is a contract; like any other contract, it must meet specific legal requirements to be valid. If an agreement is found to be invalid, it will not be enforced by the court.

Some of the factors that could make a prenuptial agreement invalid include:

  • If the agreement was signed under duress or undue influence.
  • If either party did not disclose all of their assets and liabilities.
  • If the agreement’s terms are unreasonable or unjust.
  • If the terms in the prenup agreement aren’t recognized by state law.

The Best Approach to Start an Initial Prenup Discussion

Having this conversation can be a tough one, but as with most things in a relationship, communication is key.

You should start by sitting down with your partner and explaining why you think a prenup might be necessary. Be honest about your reasons and try to avoid coming across as accusing or suspicious. Tact and understanding are essential in this conversation.

Pro Tip: When you get married without a prenup, you are effectively entering into a financial contract with your new spouse based on state laws. A prenup allows you to customize the terms of that contract to better fit your situation. Looking at it from this perspective can be helpful to remove the stigma.

It’s also important to be open to listening to your partner’s reasons for why they might not want a prenup. They may have valid concerns that you hadn’t considered. If your partner is receptive to the idea, you can then start discussing what you would like to include in the agreement.

This is also a good time to discuss your financial goals as a couple. Do you want to purchase a home? Start a business? Save for retirement ? Understanding each other’s financial goals can help create a prenup that meets both of your needs.

Once you’ve had this initial discussion, you can then start looking into the process of creating a legally binding prenuptial agreement. It’s important to seek legal advice from a qualified lawyer to ensure that your agreement is fair and enforceable.

Pros and Cons of Prenuptial Agreements

There’s no getting away from it; going the route of a prenup agreement before you walk the aisle can be an emotional experience. While logic might dictate that it’s a good idea to get everything out in the open before saying “I do,” it can feel like you’re planning for failure when you should be focused on the future.

But if you’ve been married before or have children from a previous relationship, you know that things don’t always go according to plan. It might not be the best analogy, but, in some ways, a prenup is like insurance. You hope you never have to use it, but it’s there for peace of mind, just in case.

And it’s not just about divorce. In the event of an untimely death, the surviving spouse can benefit from the clarity a prenup provides.

No matter how you feel about prenuptial agreements, it’s crucial to weigh the pros and cons before making a decision.

Pros

  • A prenuptial agreement can protect your assets.
  • A prenuptial agreement can protect your business.
  • A prenup agreement can help to ensure that your children are taken care of in the event of your death or divorce.
  • A prenuptial agreement can prevent fighting over money in a divorce.
  • A prenuptial agreement can spell out how debts will be handled in a divorce.
  • A prenup agreement can help to avoid costly and time-consuming litigation if it comes to a divorce.

Cons

  • A prenuptial agreement can feel like you’re planning for failure.
  • A prenuptial agreement can be emotionally difficult to discuss.
  • A prenup can be complex, and you may need an attorney to help you understand it.
  • A prenuptial agreement can be unfair to one spouse if not done correctly.
  • Prenuptial agreements can be invalidated if there is believed to be fraud or duress involved.

Final Thoughts

Communication and trust are the bedrock of a strong relationship; getting off to a good start by discussing financial matters can set the tone for future discussions.

If you feel that a prenuptial agreement is an important consideration before getting married, broaching the subject sooner than later and taking the time to discuss your reasons openly and honestly with your partner is the best approach and can help set the tone for a healthy and happy marriage.

Be sure to discuss the topic with care and sensitivity, giving your point of view and taking the time to listen to your partner’s concerns.

Though we go into a marriage with the hope that it will last forever, unfortunately, the statistics show that this isn’t always the case. Around 40% of marriages in the US end in divorce . So, it’s important to be prepared for the possibility that your marriage might not last.

While a prenup agreement isn’t the best option for everyone, it might be the right solution for you and your partner. A prenup can help protect your individual assets and finances in the event of a divorce. If you are still on the fence about whether or not a prenup is right for you, we suggest consulting a lawyer to get professional advice.

Premarital Agreement FAQs

Are you required to notarize a prenup?

Although a prenuptial agreement does not need to be notarized, getting it notarized is something that we strongly recommend doing. If it is thought during a divorce settlement that the prenup was signed under duress, notarization can be used as proof that both parties agreed to the terms of the agreement.

When should you start preparing your premarital agreement?

Ideally, you should start preparing your premarital agreement as soon as you get engaged. This will give you both plenty of time to review the terms of the agreement and make sure that you’re both comfortable with them. If you wait until too close to the wedding date, your spouse may feel pressured into signing the agreement and could later try to have the agreement overturned.

Is there a deadline for a prenup agreement?

No, there’s no uniform deadline for all states (except, of course, before the wedding day!). As mentioned above, the earlier you start the prenup agreement process, the better. Otherwise, it can be just another stress to add to all the others that come with wedding planning!

Some states do have certain procedural requirements that must be followed in order for the prenup to be enforceable. In California, for instance, there is a seven-day mandatory waiting period from completion of the final agreement until its signing.

What if someone won’t sign the prenuptial agreement?

It might seem harsh, but if your fiancé refuses to sign a prenuptial agreement, you may have to decide whether to go ahead with the marriage without one or to call it off. Really, this will depend on your personal circumstances and how important a prenup is to you.

If you’re set on having a prenup and your fiancé is dead set against it, you may consider hiring a mediator to help you both reach an agreement. A mediator can help you figure out how to compromise on the terms of the prenup so that you’re both happy with the final agreement.

At the very least, it might be worthwhile consulting a law firm that specializes in estate planning so that you can structure your assets in a way that would minimize the potential impact of not having a prenup in place. For example, if you put inherited assets in a joint name with your spouse, they wouldn’t be protected as separate property.

Can you draft your own prenuptial agreement?

Yes, but with the caveat that it is generally advisable to have a law firm or experienced family law attorney review any agreement prior to signing. This is because there are many technicalities involved in drafting a legally binding and enforceable prenuptial agreement. If you have both decided that a prenup is a sensible arrangement, you might as well ensure it is done correctly from the outset.

Are separate attorneys required for a prenuptial agreement?

As we’ve previously discussed, you are not required to have an attorney to create a prenuptial contract, though it is recommended, so separate lawyers are certainly not obligatory.

Be sure to check your state laws. Some states do require both parties to be represented by counsel for the prenup to be valid and enforceable.

Having said that, it certainly would be wise for you and your future spouse to have independent counsel review the draft agreement before signing it. This way, you can be sure that you both understand all of the terms of the agreement and that you’re both on the same page.

A prenup agreement is a legally binding written contract, so if there are any mistakes or omissions, it could cause significant problems down the road. For this reason, involving a family law attorney (or, even better, two) makes sense.

What is a postnuptial agreement?

A postnuptial agreement is a contract that is made between spouses after the marriage has already taken place. A postnuptial agreement, like a prenuptial agreement, can be used to shield each spouse’s assets in the event that the marriage ends in divorce or the other spouse dies. Postnuptial agreements are far less common than prenups.

It is also possible to use a postnup to make financial agreements for the duration of the marriage, such as establishing who will be accountable for certain debts or the amount of spousal support that will be paid.

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