If you’re thinking about getting married, there can be a lot of legal documents and implications that come with saying “I do.” Besides having to sign the marriage license, it may be worth considering signing a prenup too.
A prenup, or prenuptial agreement, is a document you can create to plan how you and your spouse will handle premarital assets. The contract protects your interests if the marriage ends in divorce.
Comprehensive prenuptial agreements have the power to cover a wide variety of different issues. They can include topics such as the division of property, spousal support, and estate planning. But there are limitations to what the premarital contract can include, such as child custody and child support.
When writing the document with your spouse, there can be a lot of ground to cover. You may not know what to include in a prenuptial agreement, so here are ten things you should ask for to get you started:
Separate & Marital Property
When writing your prenup, you should discuss which of your assets will be separate or community property with your spouse. These terms can also be known as premarital and marital property in other jurisdictions.
The court defines assets that a spouse acquires before marriage as separate property. Assets acquired after the marriage is community property. An agreement between you and your spouse on which property belongs in which category will avoid unwanted surprises in a divorce.
For example, you may have owned a house before getting married. But suppose your spouse provided financial help in renovating the property, which increased its value. Unless you specify the house as separate property in the prenup, the judge will consider it marital property in court. In this scenario, you may end up losing ownership of the house in the divorce.
In modern prenuptial agreements, establishing your intellectual property has become a rising trend amongst millennials. Since owning physical property such as real estate has become more expensive, people have started to protect intangible assets like their ideas.
You can protect anything you’ve created, including business ideas, music, films, photography, art, and much more. Whatever project you’re working on, you can protect it with a prenup.
You can specify that the asset and any future profits generated by it remain yours in the event of a divorce. If you’ve contributed ideas to your spouse’s project, you can ensure you receive financial compensation if they become successful from it.
All you need to do is add the necessary wording in the agreement. You can get an attorney to help you with this if required.
Most people see pets as family members in their households. Yet, the law considers pets as property. Unfortunately, this means they are subject to the laws of your state during a divorce.
It’s a good idea to have a formal agreement on who gets custody of a pet when you create your prenuptial agreement. Otherwise, you may be in for a drawn-out pet custody battle that could become costly.
If you want to avoid this outcome, you should have this conversation as early as possible before getting married and ideally before adopting a pet.
Gifts & Heirlooms
The usual rule is that when a spouse gifts their partner an item, the receiving party becomes the sole owner of that property.
But there can be situations where you might want to keep the item if you get a divorce. The gift could be a family heirloom or have significant sentimental value to you.
In that case, you would probably want to ensure the gift or heirloom remains with you or your family after separating. You can add terms in the prenup that state you will remain the rightful owner after the divorce.
Spousal support, also called alimony, is the financial compensation you receive from your spouse after divorce. Depending on your circumstances, you can include several different spousal maintenance scenarios in your prenuptial agreement that would most benefit you.
For instance, you could have stipulations that guarantee you either receive a minimum amount of alimony, a variable amount depending on conditions of your choice, or even specify that neither spouse will give alimony if you wish.
A spouse can enter a marital agreement with pre-existing debts or get into debts during their marriage. They could be credit card debts or student loans. Regardless of their nature, if you divorce or your spouse passes away, you might be responsible for paying the remaining amount.
A premarital agreement can avoid this scenario by clearly stating any debts remain separate property.
One of the most important discussions you can have when thinking about getting married is the financial responsibilities of either spouse. You may have different attitudes to your finances. Or you might even have conflicting ideas on how you’d like to plan your financial future together.
It can be beneficial to have a conversation about the topic where you can answer crucial questions such as:
- Who will make the major financial decisions?
- Who will handle living expenses?
- Will there be separate or joint bank accounts?
- How much will each of you put away for savings?
Once you’ve agreed on those issues with your spouse, you should put it in your prenup to avoid future arguments. The stipulations mentioned will also become legally enforceable in court.
Estate Plan Protection
You may have a particular preference for how you’d like to distribute your estate when you divorce or pass away. Having a preference is common with people entering their second marriage or already having significant assets.
For example, you may want to ensure that your children from a previous marriage inherit your estate instead of your spouse.
Without a prenuptial agreement in place, the court will divide your estate according to state laws.
Your future spouse (or surviving spouse if you’ve died) may end up receiving a bigger share of your estate than intended.
Keep in mind that a prenuptial agreement takes precedence over a last will and testament. This precedence means the court will defer to the prenup when it’s time to divide your property. Your will might mention that your children will inherit your estate in the event of a divorce or your death. But if this wish isn’t reflected in your prenup, the court will consider your estate as community property and treat it as such instead.
Social Media Protection
Social media has had a significant impact on our lives, so why not include it in a prenup? You can have a confidentiality clause in the document if you don’t want your spouse sharing your personal details on social media.
The clause can include what they can and can’t post online, which can be helpful if your spouse has a large following on their social media accounts.
Some couples create content together and share it on social media for financial gain. In this case, you can discuss with your spouse how you two will split future profits from your content following a divorce.
Retirement Plan Protection
Another thing you may want to ask for in a prenup is the protection of your retirement plan. The court will consider the amount you have in your savings before you marry as premarital property.
Once you get married, any future contributions will become marital property. This includes manual contributions or reinvestments due to interest.
If you want to protect your retirement plan, you must make sure you have the correct wording. State that any future additions to your plan is your sole property, and your spouse has no right to claim a part of your retirement account if you divorce. If you’re unsure about the wording required for this, you should seek legal advice.
Where To Get A Free Prenuptial Agreement Template
When you’ve decided on what you’d like to have in your prenup, you can start creating the document using our free prenuptial agreement template. Or, you can use our prenuptial agreement document builder to help you create a customized document that suits your needs.
After you have created the document, you should do a couple of things to make sure the prenup is valid and legally enforceable in court:
Make sure you have a licensed notary public notarize the signatures in the document. It’s a requirement that a prenuptial agreement is notarized when there is a transfer of real estate. But if you’re in the District of Columbia, or one of the 28 states that use the Uniform Premarital Agreement Act, then a notarization isn’t required.
While this may be the case, it’s highly encouraged to get your prenup notarized anyway. It proves you didn’t forge the signatures, and your spouse cannot challenge the prenup by claiming you coerced them into signing the document.
As a final precaution, you should hire a licensed family law attorney to check the document. They can ensure it has all the necessary elements and suggest any additional terms unique to your situation.