What? (6)
Requirements (2)
Why? (2)
What is a Prenuptial Agreement?

A prenuptial agreement is a legal agreement between two fiancées who are engaged to be married. This agreement outlines certain property rights and financial arrangements that the parties agree to as a condition of getting married. The agreement allows the parties to avoid default rules about property in case of divorce or death.

What can a prenuptial agreement do?

A prenuptial agreement can protect a person’s property interests. Prenuptial agreements can also protect a spouse from assuming the debts of the other partner and determine which property is passed on to other beneficiaries after death. Prenups can clarify the financial rights and responsibilities during a marriage, and they may help avoid long and expensive disputes in the case of divorce.

Why would I need a prenuptial agreement?

Prenuptial agreements can help protect your assets in the case of divorce or death. You can designate that certain property will be considered your own separate property and not subject to any claims by your spouse. Prenups can protect family businesses and your children’s interests in your efforts and assets. A prenuptial agreement can also provide clarity and a plan about how to distribute property if the spouses get divorced. This way, there is as little contention as possible. Simply put, a prenuptial agreement provides certainty in uncertain situations.

If you do not have a prenuptial agreement and you get divorced, state laws determine how your property will be divided. In community property states, this means that the property you earned or acquired during the marriage may be subject to a 50/50 split. In the remainder of states, this means that the marital property would be subject to “equitable division,” which is a fair distribution of the property between the parties, but not necessarily an equal split. Even though most states do not divide separate property during a divorce, many states allow the court to consider the existence and value of separate property when dividing marital property. This may translate to a spouse having more assets receiving a lower value of the distribution of the marital estate.

What are the requirements for a valid prenuptial agreement?

Like most legislation, requirements for prenuptial agreements are based on state law. Your prenuptial agreement must comply with the laws of your state. Some common trends among many states regarding prenuptial agreements include:

  • Disclosures – The parties may have to provide complete and accurate disclosures about their respective income, assets, and debts.

  • Written – Generally, a prenuptial agreement should be in writing and signed by both parties. It should be straightforward and easy to understand.

  • Fairness – Courts may not enforce an agreement that is obviously one-sided and unfair. Courts may also consider whether the circumstances surrounding the prenuptial agreement were unfair, such as asking a bride/groom to sign it immediately before the wedding — ‘or else.’ Additionally, courts may examine the substantive information included in the prenuptial agreement for fairness.

  • Legal representation – You are not required to be represented by an attorney. However, if you choose to hire an attorney, you and your fiancé cannot share the same lawyer. Even if you choose not to hire counsel, the court may still enforce the prenuptial agreement if you and your spouse had the opportunity to consult with a lawyer and simply chose not to.

What is a sunset clause?

A prenuptial agreement is a legal agreement between two fiancées who are engaged to be married. This agreement outlines certain property rights and financial arrangements that the parties agree to as a condition of getting married. The agreement allows the parties to avoid default rules about property in case of divorce or death.

What cannot be included in a prenuptial agreement?
  • Provisions that encourage divorce: All states have public policies that favor marriage and discourage divorce. Prenuptial agreements cannot encourage divorce in ways like giving a spouse an incentive to get divorced.

  • Anything related to child support: A prenuptial agreement cannot waive child support or dictate how much support should be paid. The laws of your state will determine child support and/or the court can properly calculate the amount of child support that should be paid.

  • Anything related to child custody: Likewise, prenuptial agreements may not contract away the rights of a child and dictate which primary will have primary custody. The prenuptial agreement also cannot place restrictions on child custody or visitation.

What can be included in a prenup?
  • Classification of property: A prenuptial agreement can classify which property is “separate property” and what will be considered “marital property.” This classification allows a couple to avoid the state’s default laws that would otherwise apply in the event of divorce. For example, you or your partner may classify a condo or home you owned prior to marriage as “separate property,” meaning that should you divorce in the future, that properly would remain solely yours.

  • Debts: A prenuptial agreement may specify that each spouse is only responsible for his or her own debts.

  • Provisions for child run from a previous relationship: A prenuptial agreement may be able to protect the property interests of children from previous relationships in case the spouse passes away. The spouse may wish to leave separate property to their children from prior relationships. This may be especially important if there’s a desire to preserve a family heirloom that is cherished by the lineal descendants.

  • Maintenance of separate finances: A prenuptial agreement may specify that the spouses will keep certain finances separate during the marriage and may specify which funds are marital. This can allow spouses to keep control of their own bank accounts and avoid commingling funds that could otherwise result in changing separate funds to marital funds.

Why should I consider a prenup for a second marriage?

A prenuptial agreement can help you and your future spouse decide how you will support yourselves financially throughout your marriage, whether your assets will be considered separate property or marital property during the marriage, and what will happen if your marriage ever ends in divorce.

For example, a prenup can help you and your future spouse organize how household expenses will be shared. Will they be paid in proportion to your respective incomes? Will they be split equally down the middle? What about if one or both of you has children from another relationship? Will either of you support those children financially when they are in college and/or beyond? These are important conversations to have no matter what, and a prenuptial agreement can help facilitate these discussions.

What about if you or your future spouse is closing in on retirement? Well, you must consider estate planning. Do you want to leave their money to your children or provide financially for a new spouse? Both? To remedy any concerns of estate plans post-marriage, a prenup can specify that an estate plan must be put into place after the couple marries, or can specify what terms will occur upon death of one of the parties. A provision like this will allow both parties’ families to feel at ease.

Am I required to hire a lawyer?

You are not required to hire an attorney, but most states will look at whether or not you or your future spouse had the opportunity to obtain legal advice, and whether one or both of you were represented by an attorney. Was there enough time to find an attorney before the wedding and you chose not to? Did you just sign the agreement without even reading it the night before the wedding without an opportunity to consult a lawyer? These questions will all be taken in to consideration.

In addition, it is worth having an attorney review your prenuptial agreement with you in case you have questions. If your assets are complex (i.e. significant family inheritance, business(es), etc.), it may be a good idea to have a lawyer review your agreement. HelloPrenup allows you to create a prenuptial agreement that you can then review with an attorney should you choose to do so.

Is a prenuptial agreement made online enforceable?

Yes, a prenuptial agreement that you make online is enforceable. However, you need to verify the credentials of the website on which you’re creating a prenuptial agreement before assuming that the document will be valid. Due diligence is key!

HelloPrenup was developed by family law professionals in tandem with seasoned divorce attorneys. We currently only create prenuptial agreements for couples in the states of Pennsylvania, New Jersey, New York, and Massachusetts. If you and your fiancé plan to live in one of the aforementioned states, your HelloPrenup prenuptial agreement has the greatest chance of enforceability. Of course, nothing is bulletproof- even if you hire an attorney. Your goal should be to increase your chances of enforcement to the fullest extent possible.

If you have any questions regarding the enforceability of your prenup or if you want counsel to review and advise, feel free to take your prenuptial agreement to an attorney near you.

I just got engaged. Is it too soon to create a prenuptial agreement?

It’s never too soon to create a prenuptial agreement. In fact, sometimes the sooner a prenup is created, the better. Some couples become stressed when drafting a prenuptial agreement; we developed HelloPrenup to make the process simple and seamless. Nevertheless, we know that creating a prenuptial agreement can still seem intimidating — no matter how straightforward the process may be. Therefore, it may be best to get everything out in the open and create your prenup as soon as possible. After all, don’t you want to get to the fun stuff quicker? Your cake tasting awaits you!

Am I able to change my prenuptial agreement?

Should you and your fiancé want to change the terms of your prenuptial agreement, you are more than welcome to create a new document. Feelings, circumstances, and logistics change, and you are free to establish a new prenuptial agreement until you officially tie the knot.

If, after you walk down the aisle, you’d like to make changes to the terms set in your prenuptial agreement, you’d need to create a postnuptial agreement with an attorney.

Will a prenup increase my chance of divorce?

While, for some people, the term ‘prenuptial agreement’ has a negative connotation that implies divorce, that’s far from the case. If you and your partner decide to create a prenuptial agreement, that doesn’t mean that you two are more likely to get divorced.

In fact, research points to marriages actually being stronger when there is a prenuptial agreement in place. Since money is one of the biggest topics couples fight about, removing the financial smoke and mirrors simultaneously removes a huge stressor from relationships. Prenuptial agreements are all about transparency, and transparency contributes to strong marriages.