Check out a list of (some) of HelloPrenup’s Clauses
This list should help you think about what you would like in your prenuptial agreement, and may help generate some talking points with your fiancé before you get started.
Also known as the “Recitals” section of a contract, the background section will require some basic information that will be used on the first page or so of your prenuptial agreement. This section is usually referred to as the “Recitals” or “Preamble” section of a prenup, and is meant to outline basic information about the parties, and their intentions for this agreement. You will be asked questions that include your full name, date of birth, address, your intentions behind entering into this prenuptial agreement, whether or not you are employed and if employed where you are employed, as well as your general health.
In the property section, we will ask questions about how you would like property to be defined in your prenuptial agreement. Defining property will delineate what property should remain as just yours, “Separate Property,” and what property that you would like to become “Marital Property.”
Martial property is property that will be considered both yours and your future spouse’s, and in the event of a divorce, would likely be divided in accordance of the law of the state where you get divorced, or according to the terms of your prenup. Marital property typically refers to property acquired during the course of a marriage, or property that is to be considered property of the marriage. Separate property is any property, real or personal, acquired before marriage, or by gift or inheritance during marriage, or property that is intended to remain that of one of the parties. This is where your prenup comes into play- by use of a prenuptial agreement, you can specify what property you would like to remain separate, even though under state law it may otherwise be considered marital.
Keep in mind, that property is more than just stuff. We aren’t necessarily talking about things like the coffee table that hold little or very minimal value. Property typically refers to bank accounts, investment accounts, trusts, retirement accounts, intellectual property, among other things, like physical property and real estate.
A Separate Property Recapture of Real Estate is a clause that states that if you and your future spouse contribute money to a joint venture in real estate during your marriage (purchase of real estate, home renovations, etc) above a certain dollar amount, then that lump sum amount that you individually contributed (above the threshold stated) will be “recaptured” and returned as Separate Property to the person who made the contribution. You and your fiancé decide what the threshold amount should be. Anything above that threshold will be considered that party’s Separate Property. This is helpful if you plan to buy a house or renovate a house, and either you or your fiancé will be supplying the down payment, or paying to get that kitchen re-done.
In this section, you will decide how income and debt will be resolved. Will you and your future spouse retain your rights to alimony or spousal support, or will you waive these rights? How will debt be allocated between you and your future spouse?
The topic of alimony or spousal support is a loaded one. See the next section titled “Spousal Support” for more info, check out our state specific information on the state dropdown, or check out our numerous blogs on the subject.
In this section, you and your spouse will decide whether either of you will be obligated to pay the other financial support in the event of a divorce. Please note, this does not have to do with child support, because child support cannot be addressed in a prenuptial agreement. A Prenuptial Agreement allows you and your future spouse to decide whether you would like state law to determine if support is awarded after a divorce, or if you and your future spouse would like to forfeit your rights to support in the future.
“Support” aka “Spousal Support” aka “Alimony” aka “Spousal Maintenance” is defined differently by each state, but is always a payment from one spouse to the other for a fixed period of time.
In certain states like California, the party waiving their rights to an attorney must have an attorney at the time the Prenuptial Agreement is signed in order for a spousal support waiver to be enforceable. So, if you are creating a prenup in California, and you or your spouse want to waive future spousal support, make sure to obtain legal counsel prior to execution of your agreement.
An inheritance is property (which can be physical property or money) left to you upon the passing of a family member, your parents, or someone who has passed.
A gift typically refers to any property or money that is given to you or your future spouse during the course of your marriage. This could include a valuable piece of art, or a check for $10,000, among many other things. Maybe Uncle Joe gives you a $20,000 check every Christmas just because he’s rich and he’s generous. That would be considered a gift. Now that you are married, should that moolah be considered Separate Property or Marital Property?
The Debts and Liabilities section of your Prenuptial Agreement is designed to memorialize how you and your future spouse will handle debt. This includes debt incurred prior to marriage, or debt incurred during the marriage.
If your honey has $10,000 in credit card debt, do you want to be partly responsible for it? What about if that honey racks up another $10,000 in debt during your marriage buying god-knows-what? Should you be responsible for the debt then because it was incurred during your marriage.
This is a section that should lead to some serious conversations about debt, including how you will handle any debt you do have, but also how you will share in expenses once you are married. Beyond the prenuptial agreement, you should discuss if you have children, how will you handle buying all those diapers? How will you pay for family vacations? Start the debt and budgeting conversation now. Check out our Gettin’ Hitched Checklist for more ideas on what you should be discussing prior to marriage.
A breach paragraph states that it is intended this Prenuptial Agreement be followed, and if either of you breach the agreement, or die having breached the Agreement or owing any outstanding obligations to the other, then the surviving party will have a right to seek payment and full satisfaction of said obligation from the estate of the other. The breaching party (or their estate) will be liable for any attorney’s fees, costs and expenses incurred by the other party in attempting to enforce the provisions of this Agreement.
Your HelloPrenup Prenuptial Agreement will include a section titled “Period of Marriage” This section states that for purposes of this Agreement, the period of marriage means from the date of marriage until the filing of a divorce, annulment, separate support, or dissolution of any type.
Keep it Confidential Clause
You will have the option of adding a Confidentiality Clause to your HelloPrenup agreement. A Confidentiality Clause will include provisions that ensure your future spouse will not disseminate private information to the public. This is helpful if you own a family business, if trusts or trust amounts will be disclosed in this Prenuptial Agreement due to your assets, if you are a high ranking executive with access to private company information, or if you just want an extra layer of privacy included in this document. Of course, ultimately, the validity of this clause would be up to a judge who would determine if your spouse’s actions have violated the intent of this clause.
Lump Sum Payments
HelloPrenup offers a “Lump Sum Payment” clause, which is an option that allows you and your future spouse to meet on neutral ground if one has significantly more assets, or in the case that one spouse decides to give up their career for a few years to raise the kiddos. Lump sum payments offer a sort of alternative financial arrangement for couples who may want to even out the financial footing. To even playing field, you may consider a lump sum payment if you are to be married a certain number of years, with payments taking place at certain milestones. The actual payout would occur upon divorce. Sign up and check out our Lump Sum Payment section to learn more about this option.
In order to determine which of you is better suited to take ownership of the pets in a divorce, you need to keep in mind the time it takes to care for a furry child, including walks, play dates, and general availability (ie if you travel 7 days per week, you are probably not going to be the best pet parent). You must also consider the cost associated with caring for Fluffy. What do vet bills cost? What about haircuts? Does Fluffster have any serious medical issues?
Alternatively, are you both well equipped to care for Fluffy McFlufster financially and emotionally? What if you share custody, and split all medical costs? There’s an option for that!
Our HelloPrenup death clause also states that if one of you passes away while you and your spouse are still married (and no separation or divorce action is pending), all marital property and liabilities from that marital property will be passed to the surviving spouse. In addition, all Separate Property, and liabilities associated with the deceased spouse’s Separate Property, will belong to the estate of the deceased. As stated above, this clause states that neither of you is precluded from receiving property specifically bequeathed to them in the other’s last will and testament.
such as mediation and share costs of this process equally before filing any action in any court (in a lot more detail, of course).