If you’re considering getting married, you may have heard that prenuptial agreements, or “prenups,” can be an excellent way to protect your assets.
However, you might not realize that a prenuptial agreement before marriage isn’t just for the wealthy. There are many good reasons to consider signing a prenup before marriage, no matter your financial situation.
A prenup is a legal document you and your fiance sign before getting married. The contract outlines each person’s financial rights and responsibilities during the upcoming marriage and what will happen to your assets in the event of divorce proceedings.
Common Prenup Misconceptions
However, there are many misconceptions about prenups, so let’s clear some of them up. First, anyone with any assets or debts should consider signing a prenup. Even if you don’t have much now, you may acquire marital property or obligations during the marriage, so it’s better to be safe than sorry.
Another common misconception is that prenups are only for protecting substantial assets. While this is one function of a prenup, it can also do much more. For example, a prenup can state how a marital piece of property will be divided if the marriage ends in divorce.
It can also outline each spouse’s financial future responsibilities during the marriage and set limits on spousal support if the marriage ends in divorce.
What Does A Prenup Do?
A prenup can do many things, but it is most often used to protect assets and premarital property, which includes anything from a family home to a small business. It can also set out how finances will be handled during the marriage, such as who will pay bills and whether joint bank accounts will be opened.
In the event of couple divorces, a prenup can also help ensure that each spouse gets what they are entitled to under state law. Without a prenup, state laws on community property division would apply, which may not be fair or equitable.
Who Needs A Prenup?
There is no one-size-fits-all answer to this question, as every couple’s situation is unique. However, there are some circumstances in which a prenup might be particularly useful:
- If you have significant premarital assets or separate property you want to protect in the event of death or divorce.
- If you want to keep your financial independence throughout your marriage.
- If you are entering into a second marriage and want to protect property to children or their inheritance.
- If you have premarital debt, you want your spouse to be responsible for.
- If you own a business and want to keep it separate from your personal matters.
- If you or your spouse have children from a previous relationship, you want to ensure they are provided for financially.
Pros And Cons Of Prenuptial Agreements
Like any decision, there are both pros and cons to entering into premarital agreements:
- This allows couples to discuss financial matters openly and honestly before embarking on a successful marriage.
- It can provide financial stability in the event of divorce or death.
- Can protect assets and property.
- Works to help resolve disputes quickly and amicably if marriages end in contentious divorces.
- Some people see them as unromantic or mistrustful.
- They require open communication about finances, which can be difficult for some couples.
- They need to be created well in advance of the wedding (ideally at least three months), which can be difficult if plans change at the last minute.
- If not done correctly, they can be challenged in court and overturned.
How Much Does A Prenup Cost?
The cost of a prenuptial agreement depends on the complexity of the prenup and the number of assets involved. Simple prenups can cost as little as $500, while more complex ones can cost upwards of $5,000. However, the average cost of a prenuptial agreement is between $1,500 and $3,000.
When Should Someone Begin The Process Of A Prenup?
If you’re considering a prenuptial agreement, starting the process as early as possible is important. Ideally, it would help if you began discussing the possibility of a prenup at least six months before your wedding date.
This will give both parties ample time to negotiate the terms of the agreement and have it drawn up by a family law attorney.
What’s The Best Way To Initiate The Prenup Conversation?
Some couples find it easiest to bring up the topic of a prenuptial agreement during casual conversation. Others prefer to sit down with their partner and have a more formal discussion about why they think a prenup would be beneficial.
There is no right or wrong way to initiate the conversation — ultimately, whatever method makes you both most comfortable is what’s best.
What Should A Woman Ask For In A Prenup?
There are several things women commonly ask for in prenuptial agreements, including:
Protection Of Separate Property
Protection of separate property, such as any assets owned by either party prior to marriage (e.g., homes, investments, inheritances, family business, life insurance policy). These things can be protected in a prenup, so they remain separate property after marriage.
Equal Division Of Marital Property:
In some states, marital property (i.e., property acquired during marriage) is automatically divided equally between spouses in the event of divorce or death.
However, if you live in a state where this is not the case, you may want to include language in your prenup specifying how you would like marital property divided in these circumstances.
A woman may request that her husband agree to pay alimony (spousal support) in the event of divorce or death. The amount and duration of alimony payments can be specified in a prenuptial agreement.
Waiver Of Rights To Certain Types Of Property:
In some cases, it may make sense for a woman to waive her rights to certain types of property (e.g., retirement benefits) in exchange for greater ownership of other types of property (e.g., real estate).
What Should A Man Ask For In A Prenup?
Just as there are certain things that women commonly ask for in prenuptial agreements, there are also certain things that men often request. These include:
Protection Of Separate Property:
As with women, men may want to protect any assets they owned prior to marriage in a prenup so that they remain separate property after marriage.
Equal Division Of Marital Property:
In states where marital property is not automatically divided equally between spouses in the event of divorce or death, men may want to include language specifying how they would like this type of property divided.
Waiver Of Property Rights:
Men may waive their rights to certain types of property (retirement benefits) in exchange for greater ownership of other types of property (for example, real estate).
Child Custody And Visitation Matters:
In some cases, men may want to include language in their prenuptial agreement specifying their rights and responsibilities with regard to child custody and visitation in the event of divorce.
Can You Create Your Own Prenup?
You can absolutely create your own prenuptial agreement, but some requirements must be met in order for the agreement to be valid. For starters, both parties must be of legal age and be of sound mind. The agreement must also be signed by both parties voluntarily, without any coercion or duress.
It’s important to note that simply having experienced family lawyers draw up the agreement does not make it legally binding. In order for the premarital contract to hold up in court, both parties must fully understand the terms of the agreement and sign it willingly.
How To Draft Your Own Prenup
If you decide to draft your own prenuptial agreement, there are a few things you’ll need to keep in mind. First, include all pertinent information, such as each person’s full name, address, and date of birth.
You’ll also need to list all assets and debts belonging to each party and any financial obligations (such as child support or alimony) that either party may have.
Once you’ve gathered all this information, you’ll need to put it into writing clearly and concisely. Again, it’s important to use simple language that both parties can easily understand; avoid legal jargon as much as possible.
Each party should then sign the document in front of a witness (or notary public), after which it will become a legally binding contract.
Making A Valid Prenup
There are a few key things to keep in mind if you want to ensure your prenup is valid. First, as we mentioned before, both parties must be of legal age and have sound minds when they sign the agreement.
Second, both parties must sign the agreement voluntarily; if any coercion or duress is involved, the agreement may not be valid.
It’s also important that both parties fully understand the terms of the agreement before signing it. This means that each party should have their own legal representation review the document before putting their signature on it.
Finally, the agreement must be signed in front of a witness (or notary public) in order for it to be legally binding.
What If One Party Won’t Sign The Prenup?
If you’ve gone through all the steps to create a valid prenuptial agreement and one party refuses to sign it, there’s not much you can do. The best course of action would be to get legal advice by consulting with divorce attorneys to see if there are any options available.
In most cases, however, if one party refuses to sign a prenup, it won’t be used in the event of a divorce or death.
What Can Happen If You Don’t Make A Prenup?
If you don’t make a prenuptial agreement before getting married, you’ll still have some protections under state law.
For instance, most states have laws that protect each spouse’s separate property (such as assets acquired before marriage or inherited during marriage). However, these laws vary from state to state, so it’s always best to consult with an attorney beforehand.
Without a prenup, any property acquired during the marriage will typically be considered joint property and will be subject to division in the divorce settlement. This means that each spouse could end up losing half of their assets if they decide to get divorced down the road.
Prenups vs. Postnups
A postnuptial agreement is similar to a prenup, but it’s made after you’re already married. Like a prenup, a postnup can spell out each spouse’s rights and responsibilities during the marriage and what will happen if the marriage ends in divorce. Some couples choose to have both a prenup and a postnup.
But whether you have one or both agreements depends on your unique situation.
Does A Prenup Protect Your Money?
Yes, but only if it is valid under state law. To be valid, a prenup must be fair and reasonable, and both parties must enter into it willingly with full financial disclosure.
What Prenups Don’t Cover
Prenups can’t cover everything. For example, they can’t:
- Address child custody or visitation arrangements.
- Set child support amounts.
- Determine alimony payments (also called spousal support or maintenance).
- Waive your right to file for a divorce altogether.
- Include anything that is illegal.
- It is unfair to either party.
- Be made under duress (pressure from either party).
If you try to include any of these things in your prenup, the court may not enforce it. That means that if you get divorced, the court could ignore the provisions in your prenup that address these topics.
Frequently Asked Questions:
How Long Does A Prenup Last?
A prenuptial agreement is typically valid for as long as the marriage lasts. If you have a change in circumstances (like having children), you can always amend (change) the agreement later.
Can I Get Rid Of My Prenup?
Yes, you can void (cancel) your entire prenuptial agreement if both spouses agree to do so in writing—even if one spouse changes their mind after signing it. In addition, you can also void specific provisions (sections) of your prenup if both spouses agree to do so in writing. This is called “severability.”
The severability clause states that even if one part of an agreement is found unenforceable by a court, the rest of the agreement still stands.
Who Keeps Track Of What Was Agreed Upon In The Prenup?
It’s best to keep copies of all financial records related to assets and debts brought into the marriage and any gifts or inheritances received during the marriage. Ensuring there’s no dispute later about what was supposed to be included in the division of property upon divorce.
How Do I Enforce My Prenup?
If your spouse doesn’t hold up their end of the bargain, you can take them to court to enforce the terms of your prenuptial agreement. But enforcement can be complicated and expensive, so it’s always best to work things out with your spouse first.
What If My Spouse And I Can't Agree On Something In Our Prenup?
You can try mediation or arbitration if you and your spouse can’t agree on a particular issue. These are alternatives to going to court, and they’re often less expensive and time-consuming.
As you can see, a prenuptial agreement is not just for the wealthy. It is a contract that can protect both parties in a marriage financially. If you are considering entering into a prenuptial agreement, there are some things you should know.
Prenuptial agreements can outline the division of assets in case of divorce or death. They can also spell out financial obligations during the marriage, and if done correctly, they can be enforceable in court.