A prenuptial agreement, or prenup, is a legal contract between two people engaged to be married. A prenup determines property ownership between partners and their financial obligations if the marriage ends in divorce, annulment, separation, or death.
Prenups are often fraught with negative connotations. Some people think they signal to your fiance that you’re not genuinely committed to a successful marriage. Some partners wish to avoid a tense conversation that could damage their relationship. Others want to avoid disclosing their assets.
No matter your situation, a prenup can serve to protect you and your future spouse in the case of divorce. The guide below will help you find out why getting a prenup may be a good idea for you.
You Can Reduce Future Conflict
Having a prenup agreement in place can reduce conflict in a marriage. Establishing each spouse’s financial interests and property beforehand removes the possibility of a contested divorce. This type of divorce can get lengthy, stressful, and costly.
Before getting married, you can open up the lines of communication for this topic. It can be a positive experience for both parties as they plan for the future.
For example, you can use a prenuptial agreement as a financial planning tool. Both you and your partner can get on the same page about financial goals. Otherwise, you might find yourself with different ideas on how you’d like to spend and save your money, which can lead to arguments later down the line.
A good prenuptial agreement is a collaborative effort. If your fiance wants a prenup, remember that you can also include terms in the document that protect your interests.
A prenup can also make the divorce process less complicated. As you’ve already agreed on issues about matters such as the division of property, your divorce can be a straightforward and stress-free process.
You Can Protect Your Property
A prenup can protect your property by spelling out who owns what before the marriage. The agreement can also help determine what happens to marital assets, i.e., the property jointly owned by a couple while they’re married.
For example, the court will divide marital assets in a 50/50 split if you divorce in a community property state.
Your spouse may also have a claim to premarital assets, i.e., the property you owned before the marriage, if they have contributed to it. Suppose your spouse provided financial support to maintain a house you owned before the marriage. The court may also consider that house as marital property.
In a prenuptial agreement, you can protect all kinds of property, such as:
- Family heirlooms
- Future income
- Art collections
- Intellectual property.
You Can Protect Your Business
There can be a risk coming into the marriage with a lucrative business and not having a prenup to protect it.
The court may consider any income generated from a business after marriage as marital property. This means it would be subject to the property division laws of your state.
For example, if you earned 1 million dollars from the business after marriage, your spouse may be entitled to a part of that amount.
If you want to protect your business, you should consider having a prenup that states:
- Your company is a separate entity from the marriage
- Your spouse waives all rights and claims to it
The prenup can also ensure your spouse compensates you for your contributions. Your spouse may have had a business before the marriage, but you may become so involved in the company that you’ve helped increase its value. You can then include terms in the prenup that detail a fairer distribution of assets in a divorce.
You Can Protect Your Estate
A prenup can protect your estate if you enter into a marriage with significantly more assets than your partner. Upon divorce, the court would divide marital property according to state laws.
But with a prenuptial agreement, a couple can distribute their assets as they see fit. Spouses with children from a previous relationship can benefit from a prenup, as they can ensure their children remain entitled to their inheritance.
The prenup can also protect your estate by reaffirming the terms in your last will and testament. If there are any conflicting clauses, the prenup will take precedence, so it’s a good idea to make sure they match up.
You Can Protect Your Financial Rights
Protect your financial rights by specifying the distribution of finances in your prenup. Without a prenup, the spouse you are divorcing may receive more of your money than you’d like.
Such a scenario can be inconvenient in community property states. You would lose 50% of your financial assets without a prenup.
When you commingle money, things can get more unfortunate. Mixing your personal and marital funds could lead to your spouse receiving half of your financial assets. These assets could be your bank account or even your retirement plan.
You might also have misgivings about having to pay alimony, or spousal support, to your spouse after a divorce. This tends to be an issue for people who have significantly greater wealth and assets than their partners. In this case, you could include a clause in a prenup that states your spouse will not receive alimony payments in a divorce.
There is also a risk that future income may be considered marital property. Whether these earnings are from a job, a business, a trust, or an inheritance, your spouse could receive a percentage of these assets. A prenup can protect future earnings by stating that they are not marital assets to be shared.
You Can Protect Yourself from Debt
When a couple gets married, they can also inherit each other’s debts. Whether it’s from credit cards or student loans, either spouse can become obligated to pay the debt back in the event of a divorce or their spouse’s death.
If your partner’s debt is significant, you can use a prenup to establish that all responsibility for those debts remains with them.
If you live in a community property state, the court also considers debts acquired during the marriage as a shared responsibility between spouses. Even if you aren’t aware of the debt because your spouse has hidden then from you, you can still be liable for credit card loans and medical bills.
If you have a lower income than your spouse, protecting with a prenup is crucial to avoid being in such situations.
How Can I Get a Prenup?
You can get a prenup by downloading our free prenuptial agreement template. Or you can use our step-by-step form builder to begin creating an agreement specific to your state.
The cost of a prenup can range from about $1,000 for simple agreements to $10,000 or more for complex premarital situations. You both must have the completed document reviewed by a family law attorney to ensure it fulfills all legal requirements.
Having separate lawyers review the prenup helps to prove that both parties understood their rights when drafting the agreement.
For the court to consider the agreement enforceable, they will consider whether there was a full disclosure of assets. They’ll also assess whether the prenup was fair and signed voluntarily. Having the agreement signed in front of a notary public is a good way of achieving this.
If the court deems your prenup invalid for any reason, your state’s default divorce laws will apply.
What if I don’t want a prenup?
If you find that a prenup is not something you wish to pursue, there are other ways to protect your assets before marriage.
An alternative to having a prenup is keeping your finances separate from the marriage. This route requires that you not commingle funds between your personal and joint accounts. When this happens, the court will then consider your personal account as a marital asset and subject to the property division laws of your state.
When it comes to premarital property, you should have only your name on the deed. Make sure you don’t commingle funds to maintain, operate or pay for the property.
You can also create a postnuptial agreement. The document is essentially a prenuptial agreement after marriage. Like a prenup, a postnuptial agreement addresses property division in a divorce. After a period of time, your circumstances may change during your marriage, and you might want to protect your assets.