What should a woman ask for in a prenup: 12 must-haves

With more than half of all millennials saying they'd happily sign one, prenups have experienced an explosion of popularity in recent years. Far from just being a tool to protect male wealth from the divorce process, however, these documents have significant benefits for women heading into marriage.

To help those women navigate the process, we've assembled a list of the 12 most important things a woman should ask for in their prenup.

Quick tips for negotiating a prenup

• Get separate prenuptial agreement attorneys. On top of keeping things fair and unbiased, each partner having their own attorney is one of the key requirements of creating a valid prenup.
• Think ahead. Instead of only focusing on what you need right now, consider what might happen in case of a divorce in 10, 20, or 50 years.
• Account for the unexpected. Life has a way of surprising us. Even if they're never used, consider including provisions that cover potentially unexpected circumstances.

12 things a woman should ask for in a prenup

Prenuptial agreements are powerful, flexible documents that allow for a wide range of provisions and restrictions. Until you can sit down with your own lawyer and talk about which ones best fit your specific circumstances, here's a list of the 12 things you should consider adding to your prenup.

1. Asset and property division

One of the core purposes of any prenuptial agreement is deciding who gets what in the event of a divorce. This includes personal property from before the marriage, certain assets acquired during the marriage (marital property), and anything that would be considered community property if living in one of the nine community property states.

When writing your prenup, make sure you clearly list the assets you don't want to become marital or community property, such as:

• Real estate properties. Rental units, business space, and vacation properties can all be the cause of fierce debate during divorce proceedings, so make sure to outline how you'd like them divided before that occurs. Generally, the person responsible for the upkeep or oversight of a property will get a greater share of that property (or buy their spouse's share out from them).
• Savings accounts. Left on their own, many joint bank accounts are divided fifty-fifty in a divorce. If this doesn't work for you, specify what percentage goes to which spouse. Alternatively, maintain separate savings accounts for each spouse that they will own in their entirety in a divorce.
• Investment portfolios. Stocks and investments can often make for complicated, drawn-out divorce negotiations. Decide how you'd like them divided ahead of time—preferably with the help of an accountant or family law attorney—and you can avoid frustrations and conflict down the road.
• Family heirlooms. Unfortunately, some divorce negotiations can turn sour, which is why it's important to clearly and firmly protect any heirlooms from either spouse's family.
• Personal vehicles. When you get divorced, the last thing you need is to be without a reliable form of transportation. If you and your spouse have different cars, make sure that it's clear which vehicle belongs to each of you in your prenup (and update that information when buying a new car).
• Assets intended for dependents. For couples where one or both spouses have children from a previous marriage, it's important to specify which assets or belongings are reserved for those children.

2. Housing arrangements

Beyond any rental or investment properties you may own, make sure it's clear who will keep the house or main residence in case of a separation or divorce. Often, former spouses want to create space as soon as possible following a decision to divorce, so not having to spend time arguing about who moves out can save considerable stress.

3. Debt protection

Debt and how to protect against it is another important provision in premarital agreements. Essentially, this boils down to two potential circumstances:

One partner has pre-existing debts. If you or your spouse enter into married life with considerable pre-wedding debt, you may want to protect your new spouse from having to shoulder that burden if a separation occurs. This is a staple of most marital agreements and can be included with the help of your attorney.

One partner expects to take on new debts. Debts incurred during a marriage, on the other hand, can be much trickier to unpack. If one partner takes on college loans in order to eventually contribute more to the marriage with a better job, it may be more fair to divide those debts in some capacity. Setting aside provisions for what to do with medical debt may also be something to explore with your spouse.

4. Business interests

Generally speaking, businesses should usually stay with the person best suited to ensuring their continued success. That said, some couples run businesses as partners, a situation that can greatly complicate a divorce. Depending on what you decide, one partner may buy out the other's share of the business, or, more rarely, former couples can decide to continue as business partners—just not romantic ones.

By taking the time to nail down the specifics of business interest distribution following a divorce, you protect your companies from potential turbulence and ensure they'll remain stable.

5. Alimony and spousal support

Based on your financial dynamic and beliefs, you and your partner can decide certain facts about spousal support when drafting your prenuptial agreement. This includes information such as:

• How much spousal support will be paid
• How long spousal support will be paid for
• Acts or events that would void spousal support
• Whether you want to waive spousal support entirely

Keep in mind that things like child support and visitation cannot be predetermined by a prenuptial agreement and are instead decided by the courts based on what is best for your children and any relevant state law.

6. Future inheritances

For individuals who expect to receive significant inheritances from family members or trusts, accounting for those assets in a prenuptial agreement is generally a good idea. Specifically, outline which portion of such inheritances—if any—you would want your future spouse to receive.

This is especially important for inheritances that may contain family heirlooms, real estate, or items with sentimental value, all of which are typically meant to remain separate property.

7. Gift exceptions

Gifts fall into a similar category as inheritances but should be discussed in more general terms when drafting a prenuptial agreement. This is both because gifts tend to be less predictable than inheritances and are more likely to be items or possessions rather than lump sums of cash.

Many couples choose to include a blanket provision that personal gifts received before or during the marriage should remain the property of the recipient, including gifts given by one spouse to another.

8. Infidelity clauses

Infidelity is one of the leading causes of divorce in American couples, with some surveys indicating that more than 55% of separations are at least partially related to cheating. Because of these statistics, it's no surprise that infidelity clauses continue to be a popular part of prenuptial agreements.

If you choose to include one in your prenup, you can set specific terms for what happens if and when it triggers. These terms could include an increase in alimony, one-time financial penalties, or even waivers that remove your former spouse's rights to certain benefits.

9. Retirement benefits

When most people think of marital assets, they tend to think of bank accounts and physical properties. One type of asset that is often overlooked, however, is the retirement account. This includes 401(k) plans, pensions, and other payouts.

For couples where one partner stays home or works part-time to take care of children, this can be a significant point of contention. In other situations, such as when partners have similar incomes and retirement benefits, it may be better to keep such accounts as separate property.

10. Health and life insurance insurance

If you would lose your health insurance due to a divorce decree, such as when you were on your spouse's plan, you may want to factor medical benefits into your prenup. That way, you can ensure continuity of care and prevent a scenario where you have to navigate getting health insurance and finalizing a divorce at the same time.

Also, it's possible to require your spouse to take out a life insurance plan. This is typically done to ensure you and your children will be properly taken care of in the event of an untimely death.

11. Pet custody

While a prenuptial agreement cannot be used to predetermine child support or parenting rights, it can cover what happens to family pets in the event of a divorce. This can be an especially delicate, emotional conversation, so tread carefully when outlining terms before marriage.

12. Separation guidelines

When dealing with an unexpected divorce, having clear, legally binding guidelines for how to handle the immediate tasks can be invaluable. Rather than fighting about who moves out, who gets certain resources, or what the timeline should be for separation, including this as a provision in your prenup avoids such arguments altogether.

Why women should get a prenup

For generations, soon-to-be newlyweds have been haunted by the unfounded myth that prenups are only meant for wealthy men trying to protect their riches. And, while traces of that myth still linger, society has begun to turn a corner on the idea of prenuptial agreements.

Today, an increasing number of young couples are willingly opting for a prenup. Rather than viewing it as a sign of doubt or suspicion, these partners take it as a chance to come to terms with financial planning and what they expect from their marriage.

In no demographic is this trend seen more strongly, however, than in women, many of whom are looking to protect their best interests in the case of divorce. Here are some of the reasons why more and more women are considering a prenup.

The gender pay gap

While many experts point to data indicating that the gender pay gap is shrinking (an almost imperceptible 2% since 2002), the unfortunate truth is that it still exists for most women. In America, for example, women make about 18% less, on average, than their male coworkers, with that number varying considerably from state to state. When it comes time to write a prenuptial agreement, these statistics matter for a few reasons.

First, marriages where both partners work are more likely to have an income disparity favoring a male partner. All else left equal, this means that a divorced man can be expected to have higher take-home pay than his ex-wife, regardless of whether they contributed to the marriage equally in other ways.

Second, many opposite-sex couples are making the tough choice to have the woman stay at home to take care of children. The logic goes that since women already make less because of the gender pay gap, they technically "lose" less income by becoming a stay-at-home parent. This also can have a heavy impact on financial health in the event of a divorce.

Stay-at-home parenting

Maybe you've seen headlines about the rise of stay-at-home dads, men who actively choose to stay home and raise their children while their spouse serves as the breadwinner. This is a promising trend—but one that still has a long way to go.

According to a large 2021 study, only 7% of fathers choose this stay-at-home lifestyle, compared to 26% of mothers. But why does this matter for prenuptial agreements?

By choosing to be a stay-at-home parent, you're effectively choosing to sacrifice or postpone your career to better care for your kids. While this can do great things for their personal and emotional development, it rarely helps to build a career, personal finances, or professional contacts. So, when a divorce does happen, it's the stay-at-home parent who generally struggles most in the years that follow (at least financially speaking).

A premarital agreement, then, is a way to ensure that you'll have the resources you deserve to make the transition to single life in the event of a divorce.

How to ask for a prenuptial agreement

Whether you want to make sure that you'll be financially stable in the event of a divorce or want to protect your assets from a messy separation, talking about a prenup with your spouse can be daunting.

That said, there are some reliable methods to go about the conversation that reduce stress and improve outcomes. For instance, try framing a prenuptial agreement as a mature, financially responsible decision.

Start the conversation by saying that you want to lay out clear, respectful boundaries and guidelines about how you want to manage finances once married.

If you think it might be helpful, offer to sit down with your partner and a prenup attorney to discuss the benefits of such agreements. Often, having a neutral third party with relevant experience can make all the difference.

Finally, consider compromising with a postnuptial agreement. Unlike prenups, postnups can be signed after you're already married, meaning that the pressure is off until you're able to fully experience the big day.

FAQs

Can a prenup include provisions about children or custody?

No matter what state you live in, no valid prenuptial agreement can contain provisions outlining child support, custody, or visitation rights. These subjects are instead decided by the courts in order to guarantee the best possible outcome for any children involved in a divorce.

Do prenuptial agreements ruin the romance of marriage?

One of the longest-standing concerns about prenuptial agreements is that they someone represent doubt or mistrust and, therefore, destroy some of the "magic" of marriage. Fortunately, these misconceptions have begun to change. Now, more and more couples view prenups as a sign of respect between equals and a way to establish expectations before tying the knot.

Can I write my own prenuptial agreement?

While it's possible to write your own prenuptial agreement and have it notarized, most experts suggest against the practice for all but the most basic of prenups. By writing the agreement yourself, you open yourself to potential legal challenges and, in some cases, having your prenup thrown out in court.

Can you write a prenuptial agreement for a domestic partnership?

Domestic partnerships allow for their own version of a prenuptial agreement, called a domestic agreement.

These legal documents cover many of the same topics and provisions that a normal prenuptial agreement would.

What are community property rules?

Under community property rules, any assets acquired during the course of a marriage are considered marital property and must be divided equally between partners during divorce. These rules are superseded by a prenup and can be willingly waived.

What could invalidate a prenuptial agreement?

Several things can invalidate a prenup or open it to legal challenge, including:

• One partner not having independent legal counsel
• An agreement that disproportionately favors one partner
• Illegal or unfair provisions
• Provisions attempting to determine child custody and support
• Prenups signed under duress
• Lack of full and fair disclosure
• Lack of appropriate time to review a prenup

Can you modify a prenuptial agreement after it's been signed?

So long as both partners agree about any intended changes, a prenuptial agreement can be modified after it has been signed. Keep in mind that you'll need to have the changes notarized and should likely consult a marriage attorney to ensure that the changes won't invalidate the document.