When embarking on the promise of a lifelong union, it may seem unconscionable to also think about the possibility of a divorce. You may flinch at the idea of a prenuptial agreement, but it is important to remove those rose-tinted glasses and spend some time thinking about the reality of protecting yourself and your assets should the worst happen.
Signing a prenuptial agreement isn’t an indicator that there is doubt or mistrust in your relationship, or a prediction that your union is doomed. Quite the contrary in fact! Talking to your significant other about protecting your futures encourages an important and honest pre-marriage conversation and it can demonstrate a level of respect for both your partner and their assets.
Every person has the right to protect their current, potential, and future resources and a prenup is simply a method of safeguarding your rights.
If you are newly engaged, planning your big day, or considering having a chat with your partner about a prenup, then here are the ten essential things you need to know before signing on the dotted line.
What is a premarital agreement?
A prenup is a legal contract signed by engaged couples before they get married. This document sets out their formal agreement on how their assets will be divided in the event of divorce or death.
Each state has its specific laws on the enforceability of prenuptial agreements and the minutiae of what can be included in the contract. The ruling over the prenup can also vary if the couple is married in a different state to that in which they live.
There are no parameters on how much money you need, or how wealthy you have to be to get a prenup, and no they aren’t only for the super-rich! The desire to have a happy and successful marriage has nothing to do with how much money you have in the bank. In fact being sensible about having a prenuptial agreement demonstrates your commitment to invest in both your money and your marriage.
An agreement is advisable if one party is more financially lucrative than the other, or if one spouse has children from a previous relationship or marriage. If you have concerns about achieving a fair settlement in a divorce, then a prenup is also recommended.
What you need to know before signing a prenuptial agreement
- Be Fair
In most states in America, one cornerstone to all prenuptial agreements is that they must be conscionable and fair for both parties. This means that the contract could be declared void by a judge if they rule that the division of assets is disproportionate or unreasonable. For example, if one spouse receives the vast majority of assets and the opposing party receives a meager amount.
The agreement will also take into consideration what will be fair in the future. This can include the type of lifestyle the parties have developed since the contract was drawn up, their accustomed standard of living, and whether any of the parties will incur additional burdens or difficulties because of a divorce.
- Be Honest
Before signing a prenuptial agreement, both parties are obligated to disclose their finances. This includes all investments, real estate, property, and financial liabilities. Some states also consider future inheritances and require them to be included as part of the agreement.
You will need to gather your most recent financial records, including any stocks, bonds, annuity funds, bank statements, pension schemes or retirement plans, tax returns, and recent pay slips. You will also need all statements of liabilities such as credit card debts, details of your mortgage, loans, and any other pertinent details that reflect your financial circumstances.
- Your Prenup Can Be Amended
Contrary to belief, a prenup can be changed as many times as you and your spouse deem fit. It can only be done if both parties agree with the modifications. You can also regulate your prenup by adding a sunset clause. This means that you stipulate an expiration date for the contract so that you and your spouse are prompted to revisit, refresh and revise your agreement as the end date approaches.
- You Need to Be Organized
You should start any prenuptial discussions with your future spouse as soon as possible. Discussions about the end of a marriage before it has even started may not seem like a palatable or enjoyable conversation but it is a necessary one.
If you are thinking about a prenup but haven’t broached the subject then you should allow 2-3 months for those initial conversations. This will ensure that you both have time to become comfortable with the idea and iron out any issues there may be surrounding the topic.
The contract needs to be finalized as far in advance of your wedding day as possible. In fact, a prenup signed too close to the wedding date can be deemed void in some states. However, the validity will vary depending on your jurisdiction.
Signing the contract in advance ensures that the courts are less likely to question whether one of the parties was coerced or pressured into signing the agreement.
The further in advance that both parties sign the document, the more evident that both have had sufficient time to consider and accept the contract.
The agreement should be signed a minimum of 30 days before the wedding. However, by allowing you and your partner plenty of time for discussions, revisions, and drawing up the contract, you can circumvent any unnecessary stress or upset. If you are hiring an attorney for the job, then it can take in the region of 3-6 months for the entire process. However, the same can be achieved with HelloPrenup in just a few hours.
- Premarital Property Versus Marital Property
Within the law, there are two general ways in which property is classified: premarital property (also termed as separate property) and marital property.
Premarital property references any assets a spouse had before marriage or those which were gifted or inherited during the union. A typical prenuptial agreement will determine that any assets brought into a marriage will remain the sole property of the individual.
Marital property refers to assets that both spouses gained during the period of the marriage.
The prenup can state how assets acquired during the marriage should be divided if the event of a divorce. Detailing this within a prenup is a useful way to circumvent upsetting, expensive and protracted disputes at an already emotionally difficult time.
- You Can’t Include Everything
Contrary to opinion, in most states, prenuptial agreements should only include provisions for financial property, debt allocation, spousal support, and inheritance.
A prenuptial agreement should not include:
- Any provisions which encourage divorce. Most states have policies that nurture the longevity of marriage, thus suppressing the act of divorce. Therefore, no agreement should contain incentives or ultimatums that would lead to the termination of a marriage. For example, including a provision that if one party is found gambling then the other is entitled to a divorce.
- Any provisions motivated or encouraging illegal acts. This means that a prenuptial agreement cannot cite that a spouse is required to undertake an illegal act as part of the premarital agreement.
- Frivolous or unnecessary provisions. Using a prenup for non-financial affairs or for asserting inconsequential mandates, duties or roles will often be frowned upon by the courts. Moreover, they are often not legally binding and can sometimes invalidate your contract.
- Kids Can Add Complexity
There are limits on what a prenup can involve, and this includes child custody, child support, parenting time and child visitation arrangements.
- Child support: a prenuptial agreement cannot be used to determine, waive, or dictate provisions for child support. Depending on your state of residence, this will be calculated and decided by the courts.
- Child custody: a prenuptial agreement cannot be used to prescribe child custody arrangements or include provisions such as the religion the child should be raised as, or what school they attend. Concerning custody, the courts will have the final sanction on these aspects and establish what is in the best interests of the child.
However, a prenup can be used to set out special financial considerations for any children from a previous marriage or relationship. Therefore, if you or your spouse have children from a preceding union, then it is recommended that your prenuptial agreement include details relating to property inheritance.
This means that the premarital agreement can determine financial matters relating to your children and your property in the event of your death. Without detailing these provisions in the agreement, it can lead to estate disputes, upset, and unnecessary added financial costs.
- Your Prenup Could Still Be Invalidated
There is no assurance that a prenup will be enforced if a dispute is received from one or both spouses. However, if both parties enter the contract willingly and with a full disclosure of assets then the likelihood of difficulties can be significantly reduced.
Reasons that can lead to a prenup being invalidated include:
- The agreement being unfair: this means the inclusion of unreasonable provisions, unethical demands, or unscrupulous claims.
- The contract was signed under duress or with a lack of mental capacity: If one party can prove that they were coerced into the agreement, or they did not fully understand the contract then it could be deemed void.
- A full disclosure of assets was not made: A prenup can be declared fraudulent or unenforceable if one or both parties did not fully disclose their financial assets before the contract was drawn up.
For a prenuptial agreement to be dismissed in its entirety by a judge, the couple will need to be involved in a divorce litigation case. It is worth remembering that a prenuptial agreement is an effective way to circumvent divorce litigation as it helps protect and enhance expectations prior to entering a marriage.
- You Don’t Need a Lawyer
Contrary to common opinion, you don’t need an attorney to aid you with a prenuptial agreement or to make your contract valid.
It is worth seeking out expert legal advice to review your agreement if your situation is complicated (for example, shared businesses, inheritance matters, dependents, etc.)
The courts may look at whether either party had the option to obtain legal advice or representation. They may question why you opted against doing so, whether you had time to hire an attorney or whether you were coerced into signing the document.
With HelloPrenup you have the choice of drawing up your comprehensive agreement before having it reviewed by an attorney. This means that you can ensure you have crossed your t’s and dotted your I’s but without the hefty additional legal costs.
- Contractual Costs
A prenuptial agreement serves the purpose of protecting your finances, so you should be just as shrewd when considering the cost of drawing up your contract.
If you are hiring an attorney, you can expect to pay in the region of $1,200 to $2,400. However, you can receive a legally compliant, thorough, and enforceable prenup via HelloPrenup for $599 per couple.
Talking or thinking about the dissolution of your marriage may weigh heavy on your mind and heart when you haven’t even made it up the aisle. But it is vital you are pragmatic and sensible about your future and your finances, especially if you need to safeguard dependents or children as well as yourself.