Prenuptial agreements: Everything you need to know

In the list of life's best moments, popping the question to the person you love (or being the one to answer "yes") easily ranks among the greatest. And, in all of the planning and celebration to follow, a prenuptial agreement is likely the last thing on your mind. Even if one or both of you do think of it, chances are the idea of having a prenup conversation is less than attractive.

Even so, prenuptial agreements have come a long way, so much so that more than 40% of young couples opt for one. But how do you know if these marital agreements are right for you, and how do you go about making them a reality without souring the honeymoon phase?

What is a prenuptial agreement?

The prenuptial agreement is hardly a new form of legal document. In fact, they have been around in some form or another for thousands of years. Historically, the practice of writing a prenuptial agreement was most commonly used in European and Far Eastern cultures, where royal families have always made provisions for protecting their riches.

Still, in light of high divorce rates among recent generations, prenups have taken on a note of "expecting the worse" rather than being viewed as the reasonable, mutual agreements they really are.

So, even before you approach your future spouse with talk of a prenup, it's important to make sure that you understand exactly what they're meant to do and what to expect from the process.

In their simplest forms, prenuptial agreements give both parties a chance to set forth what will happen to income and assets if the marriage ends in the event of a divorce, separation, or death.

Instead of handling these complicated and often emotionally charged issues after they've happened, premarital agreements allow you to reasonably and respectfully set boundaries, establish marital expectations, and come to equal ground with your soon-to-be spouse.

Discussing financial issues is never easy, but talking about money before entering a marriage can save heartache and tension in the long term. Without a prenup, assets could end up in the hands of your spouse's children from a previous marriage instead of your own kids. Or they could go to a lazy mate who contributed very little while you built a business from the ground up or wrote a book that later became a smashing success.

Remember: Marriage is as much a financial partnership as it is an emotional one, so you're entirely within your rights to lay down ground rules about assets and money before saying, "I do."

How do you know if a prenup is right for you?

Legally speaking, most experts suggest creating a premarital agreement for almost anyone heading into a marriage (especially if it isn't your first). Still, some circumstances benefit more from an agreement than others. If any of the following situations apply to you, consider speaking with a legal professional about drafting a prenup.

You have considerable assets, such as a home, stock, or retirement funds
You own all or part of a business

• You may be receiving money from an inheritance
• You have children and/or grandchildren from a previous marriage
• One of you is more financially stable or wealthier than the other
• One of you will be supporting the other's education
• You have loved ones who need to be taken care of (i.e., elderly parents or a mentally or physically challenged sibling)
• You have or are pursuing a degree in a potentially profitable profession, such as law or medicine
• You see a potentially large income increase due to your business taking off, your book making it to the bestseller list, your band recording their first hit, etc.

The list of people who would benefit from a prenup extends far beyond the examples we've provided above, but the bottom line comes down to this: Would you rather go into your marriage with a clear, fair set of financial expectations or without?

What are the benefits of a prenuptial agreement?

The core purpose of any prenuptial agreement is to protect both parties, both during and after a marriage. That said, this kind of agreement offers specific benefits—some of which you may not expect.

• Outline financial expectations: In addition to outlining what happens with finances after marriage, prenuptial agreements can also specify how you and your partner handle finances during your marriage, including things such as bank accounts, credit card usage, financial obligations, whether you will maintain separate property and more.
• Protect one or both parties from individual debts: Often, one partner may not be comfortable sharing the debts incurred by another, such as from schooling or medical bills. Alternatively, the partner who expects to incur such debts may not want to burden their spouse with paying them in the event of divorce or death.
• Divide personal property fairly in the event of death: In the event of your death, you'll likely want to distribute your personal property among several people beyond your spouse, such as family members or children from a prior marriage. Because a prenup differentiates between personal and marital property, it helps prevent a situation where your spouse receives a disproportionate or unintended amount of your assets after you die, leaving other loved ones to go without.
• Pre-negotiate spousal support in the event of a divorce: In the unfortunate event of a divorce, negotiating spousal support is rarely a fun ordeal. By agreeing on the nature of this support ahead of time, you can avoid any messy, emotional elements from affecting the fairness of the agreement and ensure everyone gets what they deserve.

How is a prenuptial agreement created?

Typically, prenuptial agreements are drafted by an attorney (often a family law attorney based in the couple's state) and signed by both parties before the marriage itself is finalized.

While the enforcement of prenuptial agreements varies from state to state, five conditions are generally imposed on how they're created.

1. Financial disclosure

First, all assets, accounts, liabilities, sources of income, and any other factors likely to create a shift in financial position must, or at the very least, be revealed. This is also referred to as "full and fair disclosure" and helps ensure that all the facts are on the table before any binding decisions are made.

2. Separate attorneys

Second, each party must be represented by independent legal counsel. This is done to prevent any conflict of interests with your chosen representation and ensure that both parties are fairly represented in a way that fits their best interests.

3. Fair agreement

Third, any valid prenuptial agreement must be fair at the time it is entered into. What this means is that your prospective spouse must have a certain period of time between when he or she is presented with the agreement and when you both will be getting married. This prevents either spouse from "surprising" their partner with a prenup in a way that forces them into an ultimatum.

A "fair agreement" could also mean that if your spouse is from a foreign country, the document must be translated into their native language, or a translator must be brought in to read it to them in the native tongue. While this is included as one of the conditions for forming a valid prenup, it's often left to the courts and a jury to decide what a reasonable person would consider fair.

4. Court discretion

Fourth, the courts may cancel for a number of reasons. These reasons may vary depending on state but generally include things such as:

• Any prenuptial agreement that would disproportionately favor one partner
• Any prenuptial agreement that would impoverish either party
• One or both parties were dishonest during the disclosure
• One or both parties were coerced into agreeing to the prenup

While it's relatively rare for the courts to invalidate a prenuptial agreement, it's always best to consult a licensed legal professional when drafting yours in order to avoid any hiccups or confusion.

5. Child support and parental rights

One of the most ironclad aspects of a prenuptial agreement is that it cannot be used to pre-determine things like child support, visitation rights, or custody. Instead, the courts retain full authority to determine what is best for the child in the event of a divorce.

Also, prenuptial agreements cannot specify responsibilities such as parental duties for the duration of the marriage itself.

Other considerations to keep in mind

Beyond the five main guidelines listed above, there are countless details to consider when creating a prenuptial agreement—which is why it's always a good idea to consult a lawyer when doing so.

Still, a few of the most commonly overlooked details are:

• Your spouse's will can always offer more than what is outlined in the prenuptial agreement but can never be less than what you are owed per its details. This means that both partners can be sure that they will retain a set amount of financial stability in the event of a divorce or death.
• You can include a sunset clause in your prenuptial, which means the agreement will only be valid for a predetermined amount of time. You can decide whether the prenuptial will expire in 10 years, 20, or at any other time you select. This option allows people the comfort of a prenuptial while not feeling bound by it after the marriage has proved to last.
• While it may seem obvious, remember that a prenuptial agreement is a legal contract just like any other. To that end, make sure that your agreement is in writing, that you have witnesses present when it's signed, and that the contract is signed in triplicate. One copy should go to each partner, while the third is kept in a mutually owned lockbox or safety deposit box.

What happens if I get divorced without a prenuptial agreement?

If you and your partner choose to forego a prenuptial agreement, what happens in the event of a divorce or death largely depends on the state law where you live, specifically whether you live in a "community property" state.

Community property states

Under community property rules, any income, property, or other assets acquired by either spouse throughout the duration of the marriage is considered community property, meaning that it is equally owned by both people in the marriage. Because of this, community property rules do not favor one partner over another when determining rights during a divorce, regardless of who earned more or provided more throughout the relationship.

In the United States, there are nine community property states, which are:

• California
• Arizona
• Nevada
• Louisiana
• Idaho
• New Mexico
• Washington
• Texas
• Wisconsin

Keep in mind that community property laws differ between the nine states in which they are enforced, so it's important to familiarize yourself with your state's specific laws before deciding to forego a prenup. For instance, some states exclude assets earned before the marriage, family assets, or inheritances.

Non-community property states

In the 41 states that do not maintain community property laws, assets are generally divided equitably in the case of a divorce—but not equally. Rather than splitting everything down the middle, these states turn to their court systems to determine how finances and assets will be split between former spouses.

Typically, these decisions take into consideration each partner's income, debts, overall contributions to the marriage, and projected future earnings. Even if both partners have similar financial situations in the present, the partner with substantially greater potential future earnings may end up paying more in a divorce.

In less agreeable divorces, a court's decision will also be greatly influenced by the lawyers who are inevitably involved with divorce proceedings. While this can go one way or another depending on the specifics of your situation and the experience of your lawyer, it's almost always best to simply draft a prenuptial agreement ahead of time and avoid legal proceedings altogether.

How to approach the prenup conversation with your partner

Now that we've covered the important legal benefits and considerations surrounding prenuptial agreements, it's time to get to the complicated part: talking about the topic with your partner.
As we mentioned earlier, many people from previous generations viewed prenups as a form of mistrust or, worse, a prediction that the marriage wouldn't work out.

Thankfully, many couples in the 21st century are coming around to the idea of a prenup, but approaching the conversation with your partner can still be a challenge if they're unsure about the idea.

In our experience, there are a few key things to keep in mind when doing so:

1. Emphasize that it benefits both of you

The absolute worst-case scenario is one partner believing that a prenuptial agreement is only for the benefit of the other person. When talking about the subject, make sure to highlight the ways that it benefits and protects both partners, from making sure that each person will receive a fair share of assets in the event of a divorce to helping set clear ground rules for how finances will be handled during the marriage.

If it helps, emphasize that "unfair" prenuptial agreements are, by definition, invalid, and any prenup that disproportionately favors one partner over the other is unlikely to be upheld by the courts.

2. Give them plenty of time to think about it

Not only is it incredibly important to give your partner plenty of time before the wedding to think about a prenuptial agreement, but failing to do so may be outright illegal. Rather than leaving it until the last minute, consider talking about it much earlier in the relationship (we suggest after the glow of the proposal has dimmed a bit).

Once the time is right, approach it as just another part of wedding planning, like finding a venue or booking a band. Remember, a prenuptial agreement isn't a sign of mistrust. It's just a logical and reasonable way to make sure you and your partner are on the same page financially.

3. Help them research and understand the process

Often, doubts or misgivings about a prenuptial agreement stem from a lack of understanding. To that end, helping your partner learn more about prenups with reliable third-party sources can go a long way toward calming their fears.

What's important to remember here, however, is that expert, reliable sources will bring the best results—especially those that convey information in an approachable, non-threatening fashion. Vet the sources you suggest to your partner ahead of time to ensure they avoid the fear-mongering and scare tactics that are all too common in certain circles.

4. Consult legal experts

Just like you need a registered officiant to formally wed you and your partner, it's best to find a qualified legal expert to help guide you through drafting and executing your prenuptial agreement. By doing so, you ensure that both parties fully understand the contents of the agreement and will be fairly treated in the event it needs to be used.

Additionally, some courts may invalidate a prenuptial agreement drafted without appropriate representation for both parties, so hiring a separate lawyer for each partner is almost always in your best interests.

FAQs

How much does it cost to create a prenup?

Like most legal documents, prices will vary depending on your state of residence and how complicated the process becomes. In general, you should expect to pay anywhere from $500 to $10,000 for your prenuptial agreement, though the top end of that range is typically limited for the most complicated situations where both parties have significant assets, debts, or inheritances.

Can I draft my own prenuptial agreement?

While it is possible for one or both spouses to draft their own prenuptial agreement, doing so opens you both up to potential unfairness or issues with legal enforceability. This is especially important in situations where one party doesn't fully understand their rights under the law.

Can I form a prenup after I'm already married?

A prenuptial agreement formed after a marriage has already been filed is known as a postnuptial agreement or postnup. Besides, when they are signed, a prenup and postnup are functionally identical in terms of the protections and rights they provide for partners in a marriage.

Can a prenup be undone?

Yes. In the event that a prenuptial agreement is deemed unfair or includes illegal terms, the courts maintain the authority to revoke or invalidate it. Additionally, any prenup that was entered into without proper representation or under coercion can be revoked.

What is considered 'marital property'?

Unless otherwise specified in a prenuptial agreement, "marital property" covers a wide range of assets, including bank accounts, residences, other real estate, valuables (such as jewelry or expensive furniture), vehicles, retirement accounts, stocks or other investments, and even debts.

Separate property is typically exempt from this designation and can be outlined in a premarital agreement.