What is this for?
This Prenup Encyclopedia is designed to gear you and your partner up before you dive into your prenuptial agreement.
Advice – the legal kind
Contributions from either Fiancé
Dissolution of marriage
Draft prenuptial agreement
An unsigned, “unofficial” version of your prenuptial agreement, that may be a work in process.
Earned income included in your prenuptial agreement financial schedule
Money that comes from your employment. Earned income can include taxable employee compensation and earnings from self-employment, and in certain cases, disability payments. Read more here: IRS Definition of earned income
Congratulations! You’re about to get married!
Both partners are represented in a balanced and fair way without one holding more benefit than the other.
A legal theory where marital property is distributed to divorcing spouses equitably upon a divorce. In states that operate under an equitable distribution theory, assets are often classified as either separate property or marital property. Equitable distribution does not mean equal distribution of assets, and in fact is intended to distribute assets based on a number of factors, determined by the state, that help determine the amount/assets that each party receives.
Including crucial information within your prenup that is required by HelloPrenup
An engaged person – a person who is promised to a marriage. Also known as “off the market.”
You must include *all* of your financial information in your financial schedule. HelloPrenup offers categories to help you organize this information.
Some states require “full disclosure” of finances, and others require “full and fair financial disclosure” of finances. Regardless, if you want the greatest chance of enforcement, it is important that you disclose all of your finances. So, where do you put this information? Each fiancé will have a “Schedule A” or “Schedule B” financial schedule, that will include this information.
Full financial disclosure is imperative for a variety of reasons. If you fail to disclose all of your assets, your prenup may be found invalid in the case of a divorce. This means you and your spouse may have to take part in litigation to resolve the matters that should have been resolved in your prenup.
Want an example of what may happen should you choose NOT to disclose all of your finances? In one Massachusetts case, the appeals court invalidated a prenuptial agreement after finding a lack of full disclosure by one of the spouses (Schechter v. Schechter, 88 Mass. App. Ct. 239 (2015). In this case, the husband did not disclose his financial assets. He also falsely claimed that his primary asset, his real estate company, was a partnership when it was not.
A sum of money. Funds can refer to your money, their money, joint money.
A person born between the years 1995 and 2009 who doesn’t believe in skinny jeans or side parts.
Something that is given to you that you did not purchase on your own. Fun fact! An engagement ring is not a gift unless it was given on your birthday or on a holiday. Otherwise, it is a “conditional gift” and the condition of marriage must be fulfilled before it becomes marital property. IF the ring was given on your birthday or Christmas, then it is your separate property (usually).
A transfer of gifts or assets without anything in return.
Getting legal advice and guidance from attorneys that specialize in prenuptial agreements and family planning.
Being unfaithful to your spouse. Not a good idea.
The passing of property, titles, debts, entitlements, privileges, rights, obligations upon the death of an individual to another individual(s). Want to exclude any future inheritance as separate / nonmarital property (ie exclude it from the marital estate)? Make sure you know the value, make sure it is listed in your financial schedule, and make sure it is detailed in your prenuptial agreement as remaining separate.
An invention or working project that stems from creativity – can be protected with a patent, copyright, or trademarkable rights.
Investments – to be included in your prenup financial schedule
A asset that has potential to generate income or appreciation in value over time (or at another time other than the present). All of your investments should be included in your Schedule A or B financial schedule.
Property that is co-owned between you and your partner.
Property that would be considered part of the marital estate and subject to division at the time of divorce.
Law of Competent Jurisdiction
This refers to which state’s law will be applied (likely to your divorce or separation matter) once the proper jurisdiction (state) is determined.
Legal custody is the right to make important decisions regarding the child’s life. Legal custody can be either joint or sole and it can vary depending on the case and the state. Generally, legal custody is about making the decisions for a child regarding their education, healthcare, religious upbringing, etc. Remember, legal custody of a child cannot be included in a prenuptial agreement.
A prepayment to a lawyer that is held in an IOLTA account and used against legal services as they are billed.
Clauses that you can include in your prenup, that often relate to behavior based requirements. These can include: Infidelity clause, sunset clause, confidentiality clause, social image clause, etc.
Marital property is considered property that is a part of the marital estate and subject to division in the event of a divorce.
A person born between the years 1981 and 1996, who loves avocado toast and holds much disdain for dryer sheets.
Strategically discussing a topic until both parties find an acceptable solution or answer. The good news? Negotiations with your spouse regarding your prenuptial agreement have never been easier! HelloPrenup’s dispute resolution phase allows you and your fiancé to clearly see a list of the discrepancies in your answers- and easily decide which answer you will finally choose before finalizing your agreement.
Property that is not considered part of the marital estate and that is not or should not be subject to division in the event of a divorce.
Party (no, not that kind of party)
A person whose interests are represented in the prenup. You are a party and your partner is a party.
Physical custody is a parent’s right to have their child reside with them, and physical custody may be granted solely to one parent, or split between both parents. Physical custody cannot be contracted to in a prenuptial agreement.
An agreement signed post marriage that designates the terms of property and spousal support in the event of death, separation, or divorce. Not all states uphold postnuptial agreements, and it is widely understood that a prenuptial agreement generally has a greater chance of enforcement than a postnuptial agreement.
Things you own before getting married.
Property that is yours before you get married, or property that is considered separate property by that owner within the marriage.
A clause providing for a particular matter within the agreement. Example – sunset clause.
Restricted stock is an asset that can be included in your Schedule A or B financial schedule in your prenuptial agreement. This form of asset is a type of executive compensation where shares are issued to employees that come with conditions and a vesting period.
Revisions and changes to your prenup
Revising or making changes to your prenup. Many states allow partners to revise their prenup even after they are married, if such revisions are made following the same formalities as the prenuptial agreement, and those changes are signed and signatures are notarized.
If you are getting married for the second time, there are some important points to note with respect to prenups and second marriages. A prenuptial agreement can help you and your spouse-to-be decide how you will handle finances, what assets will be considered separate property or marital property, and what will happen if your marriage ever ends in divorce or death. Statistically (and we know you aren’t going to be this statistic, don’t worry!) second marriages face a greater risk of divorce, with 67% ending in divorce. If you are remarrying, chances are you have acquired more assets than if this were a first marriage, so a prenup may be more relevant to you now than before.
You and your partner don’t share that money together. Your money is yours, and your partner’s is theirs. Funds that are not intended to be part of the marital estate, and for that reason are kept separate.
Property that is to remain yours, and yours alone, and not be considered part of the marital estate. Gifts can also be separate property (even if you didn’t use your own money to purchase it), so long as you specify that they should be considered Separate Property in the prenuptial agreement. In some states, Separate Property is also called “Nonmarital Property”
Separation / Legal Separation
Legal separation is a term recognized in certain states, and not others. If Legal Separation is an option in your state, you can often petition the court to grant this status. It is important to note that being “legally separated” is a different legal status – meaning, you are no longer married, but you are not yet divorced, either. In states that recognize legal separation, that status change often includes orders about child custody and support, as well as property division and spousal support / alimony.
A payment from one spouse to the other spouse upon divorce or separation. The original term “alimony” arose from the olden days, when a man would need to pay his ex-wife a certain amount of money to maintain her lifestyle upon divorce (because women seldom were allowed to work- thank god times have changed!) Alimony, or in some states as they are now called, spousal support, or spousal maintenance statutes differ per state. Each state statute can define spousal support calculations pursuant to that state’s statute. Make sure to check your state statute for specifics!
Types of “Property”
Under the law (when you get divorced) property is either considered “marital property” or “community property” / “separate property” or “nonmarital property” and the terminology that is used depends on what state you live in.
Money that comes in from somewhere other than your employment. Example – interest in savings accounts, bond, alimony, dividends.
A multi-state act that helps give states guidelines on how prenuptial agreements should be drafted, what they should include, and how a prenup should be enforced. Not all states have adopted the UPAA, and some has adopted it in part with modifications.
A waiver of legal advice and representation is a paragraph after the signature page in your prenuptial agreement that is optional to include. If you include this paragraph, you are doing so because you are choosing not to have an attorney represent you in the negotiation and drafting of this prenuptial agreement, or you are choosing not to obtain legal advice about your legal rights and responsibilities under the divorce law of your state. If you would like to obtain legal advice and representation in your prenuptial agreement, great! You can do that. Many HelloPrenup users choose to take their HelloPrenup draft to an attorney before signing, so ensure they understand their rights before doing so.
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