Prenup 101: What Is a Prenup and Should You Get One?
While prenuptial agreements aren't nearly as fun to think about as wedding cakes or honeymoons, they can help you avoid financial issues later in life. Some couples might feel as though a prenup has a divorce stigma attached to it, but it can actually be a great opportunity to get on the same page for planning your future together. To help lay it all out for you, we consulted Sandra L. Schpoont, family and matrimonial law attorney and partner at Schpoont & Cavallo LLP, and Robert Wallack, celebrity divorce attorney and founder of The Wallack Firm, which specializes in matrimonial and family law matters.
What Is a Prenup?
Simply put, a prenuptial agreement (also known as a premarital agreement or antenuptial agreement) is a contract that a couple signs before getting married to figure out their finances in case of a divorce. "Prenuptial agreements cover how a couple splits their finances, what each party's separate property is (what they come into the marriage with) and how they would split their home," Schpoont says. "It can delineate how they'd divide up marital property, including marital debt—so what they have, but also what they owe—and it can also state how long a spouse or children can stay in a marital home during a divorce."
Here are some other points to understand about prenuptial agreements:
Prenups Aren't Just for the Rich and Famous
Many engaged couples assume that prenups are only for wealthy individuals, but that just isn't true in this day and age. If you own assets you want to protect or think you might want to protect assets in the future, consider getting a prenup. One good way to think about it is this—marriage is a contract, whether you consider it to be or not. Without a prenup, your state of residence will determine how your assets are divided should you get a divorce. A prenup gives you control over this process.
Your Prenup Needs to Be Fair
Just because you create a prenup doesn't mean you can set any standards that you wish. For example, you can't award yourself all of your marital assets in the event of a divorce. For a judge to accept your prenup, it must be clear, legally sound and fair.
You'll Need Different Lawyers
If you're looking to save money, you and your future spouse can use a template to create a prenup, It's still a good idea for each of you to at least have separate attorneys review the document before you sign. If your estate is more complex, you may wish for an attorney to draft the prenup. Either way, having an attorney review the prenup will help protect your interests and will go a long way toward convincing a judge that the prenup is valid.
You Set the Terms for Spousal Support
Spousal support (also known as alimony) is something many couples fight about during divorce proceedings. A prenup can nip this argument in the bud by letting you set the terms of spousal support at the beginning of your marriage. If you or your spouse don't plan to work (perhaps with the intent to stay home and raise children), spousal support is something you should definitely discuss. Otherwise, many prenups waive spousal support privileges.
Prenups Don't Can't Include Child Support or Custody Details
You cannot include details about child support in your prenup. That includes limiting child support or providing for child support. In the event of a divorce, you'll need to address child support and custody as part of your settlement.
Prenups Can Give You Peace of Mind
While some couples in love may feel uncomfortable even discussing a prenup with its connection to divorce, others may appreciate the peace of mind a prenup offers. If you happen to be much wealthier than your future spouse, a prenup can ease worries that your wealth is a factor in your partner's decision to marry you.
Prenups Can Save You Money
Nothing is guaranteed, not even your marriage. If, one day, your marriage ends, a prenuptial agreement can save you a substantial amount of money, frustration and stress. We've all heard the horror stories of couples who wage their divorce battle in court, paying endless attorney fees and legal costs and dragging out the process for years. With a signed and valid prenup in your pocket, you can quickly and easily divide your assets and move on with your life.
8 Popular Reasons Couples Get Prenups
So, should you get a prenup? That answer depends on your circumstances, your financial situation and your personal preferences. However, here are eight reasons to consider a prenup:
1. At least one of you has been married before
Some circumstances may be different than they were in the first marriage. If you're bringing certain assets into a new marriage, like child support and multiple properties, you may want to ensure they don't get tangled in any other finances.
2. You or your spouse has children
A prenup can establish what should be left to your children, and also make sure that previous and current family members have a financial plan in the case of death. "People still should have wills, but prenups can provide those intentions from both parties during marriage," Schpoont says.
3. One of you is much wealthier than the other
You may want to protect your assets if you come into the marriage with a higher financial worth than your spouse.
4. One of you has a lot more debt than the other
If your partner has debt or acquires extreme debt during your marriage, you probably don't want to take that on in the case of a divorce.
5. One or both of you are small business owners or entrepreneurs
Protecting your investments can be important if you own a closely held family business, a business with your name on it, or a business with other people.
6. You want your finances and marriage to remain private
Nobody wants their personal matters to be leaked to the public, and a prenup can ensure that that won't happen. "A confidentiality clause is now becoming standard in many prenups," Schpoont says. "It makes sure that neither party could disparage the other on social media, television, in any publication (including a memoir) or publicize any negative aspects of their marriage or financial or personal lives."
7. You were engaged for a very short period of time
Some couples meet and get married quickly, so a prenup is good if you don't know each other that well. Other couples don't want to talk about it while wedding planning and instead sign a postnuptial agreement after the marriage is legalized. (You can get a postnup anytime after you get married or make amendments to your prenup after the wedding that can change it into a postnup, Wallack notes).
8. One of you doesn't work or doesn't plan to continue working
If one party will be staying at home to raise a child, for example, the couple can agree on financial provisions so the party in question (not the child) can have a financial plan in the event of a divorce.
And if you're still on the fence about signing a prenup, we recommend seeing a marriage counselor to talk through any issues or confiding in others going through the same thing on our community boards. While we're not saying you have to get a prenup, we do know a lot of couples who have confidently signed them and are still happily married.