Why should someone sign a prenup?
A straightforward letter from HelloPrenup’s CEO & Founder
If I had a dollar for every time someone asked us this question, I would be logged out on a HelloPrenup branded yacht, sipping my third margarita under the warm, hot sun. (I’m not, just an FYI, just a COVID fantasy)
The truth of the matter is – it’s really the “latter” question that should be asked.
Why shouldn’t someone sign a prenup?
It’s increasingly difficult to get this question across to people organically, but the truth of the matter is that marriages are businesses and like any business, there is some sort of agreement in place with respect to how it operates and what to do if it fails. In fact, I often refer to all of the parts of a divorce that a prenup covers, as the “business of divorce.” Because that’s how it is treated in the court of law.
Whether love, loyalty, or romance is the currency, the finances of your marriage are in so many ways a business and therefore should be treated as such.
A prenuptial agreement (or as the streets say, “prenup”) is a marriage contract that is drafted and signed prior to marriage. It drafts out what will happen to community property or marital property (property that is acquired during the marriage- the specific terms depends on which state you are in) and what will happen to separate aka nonmarital property (property that belongs to each person individually and is not considered part of the marital estate).
Without a prenup, the division of this property in the event of a divorce is at the mercy of your state’s divorce law. An enforceable prenuptial agreement effectively allows you to circumvent your state’s divorce law.
So, the fact that your state has the right to control how your assets are divided at the time of divorce sounds really off, right? Because it’s YOUR stuff…
How could the government decide what happens to our stuff in the event that we don’t work out?
Shouldn’t we have a say in that?
Simply put – yes. You two absolutely should have a say in that.
But if you don’t “say” what will happen to your assets, debt, property, inheritance, dogs, etc prior to getting married, then you are defaulting to guidelines that may not take into consideration an arrangement for those things that would have be preferable to you. Like, for example, making sure your inheritance remains excluded from the marital estate.
Here are a few more specific reasons why a prenup is almost always a good idea:
All the Properties: Separate Property, Nonmarital Property, Marital Property, Community Property
Probably the most important aspect that a prenup will cover is your and your partner’s property.
As we mentioned earlier, under the law (when you get divorced) property is either considered “marital property” or “community property” (depends on what state you live in), or “separate property” / “nonmarital property.” Again, the terminology will change depending on which state you live in.
Before getting married, it is best to discuss:
Will you and your spouse share everything (assets & debt) while married?
Or will some assets and debt be separate?
What about in the event of separation or divorce? Is everything split evenly? What about the property you buy together? What about if you buy real estate together and one of you contributes the lion’s share of the down payment or pays the entire mortgage?
Or do you want to keep some assets separate to protect yourself financially in the event it just doesn’t work out?
A prenup can address how you would like to own property. Discussing these desires directly with your future spouse, and putting pen to paper can be a tremendously useful exercise in communicating about finances with your soon-to-be life partner. Working out your differences in opinion in a way that makes both of you feel comfortable, is a sure way to make sure that you can communicate. And, if this is a rough process for you, this conversation will help you *learn* to communicate about the tough stuff. Hopefully you have come to the realization by now that relationships, and especially marriages require good, thoughtful, productive communication.
While you and your future spouse are on the topic of addressing wishes, inheritance should be a topic of discussion. Depending on what state you live in, unless otherwise specified, inheritance from one side could be considered joint marital property if it is not otherwise specified.
Will you and your spouse share any inheritance from one side of the family?
Does this make sense if you have kids from a previous marriage?
In some states, where inheritance can be divided as part of the marital estate in a divorce, one party could argue that they deserve a disproportionate division of assets (like, disproportionate in their favor…) because the couple operated and spent money throughout their marriage in anticipation of and reliance on that future inheritance.
Without addressing these concerns prior to getting married – you guessed it. Your state will address them for you, and you may not like the answer.
Most couples have some form of debt entering a marriage. These days, it tends to be student loan debt, or debt associated with higher education. I have seen couples enter marriage with significant credit card debt, acquired while in grad school and ever-increasing due to high interest rates. I have seen couples who plan to marry, and then one partner plans to begin graduate school and will take out loans to do so.
Whether it’s from one partner or both, you can bet that debt will be at the start of a marriage (and it could even come from the wedding itself)
Once married, debt can be considered marital or community property. So, without specifying in a prenup who is responsible for certain debts, leaves skepticism and ambiguity and a whole mess if there is a separation or divorce.
Will both of you be liable for debt (credit card, school, personal, mortgage) accrued by either party in the marriage?
Do you still want this liability to be potentially shared if one of you racks up all of the debt and the other doesn’t?
Who’s debt is who’s?
Does it make sense to protect certain property as Separate Property (aka Nonmarital property) because you have kids from a previous marriage?
Or, does it make sense to let fate decide and just let all property go to whomever the court decides it should?
Do you want to spend time discussing tough topics (like finances, death, and marital obligations) while you’re entering the marriage with love in your hearts?
Or do you want to risk spending time talking about these tough topics during long, emotionally exhausting and expensive disputes with your divorce lawyers?
Divorce rates hover at 50%:
Not to get all negative Nancy on you, but statistically speaking, there is a 50% chance that your marriage will not last. I’m 100% guessing it will (because you two are incredibly intelligent people and seem capable of making this marriage last) but it’s important to understand the prevalence of divorce to understand why prenups are so critical to health of a marriage.
A prenup makes your financial future 100% yours to decide, rather than leaving it up to the laws of your state. By drafting a prenup you two will be able to decide all of the financial things you want to control (besides childcare or child support which cannot be included in a prenup).
There has been a 500% increase in prenups within the last 20 years
And that’s because there are more and more couples who are entering into marriages with more to lose on both sides.
Women are commonly the breadwinners of the family and are entering marriages with investments, retirement accounts, businesses and want to maintain those assets as separate property.
Men are also relieved to know that women are starting to propose (prenups that is) more often than previous generations because they want fairness and equality with their partners and can diversify their assets for the greater good of their marriage.
You’re risking a lot by not getting a prenup.
No prenup means less say, less reliability, and less peace of mind for the both of you.
By taking the issues of finances in marriage seriously prior to actually getting married, you are investing in your futures emotionally and financially – and will likely have a more successful marriage because of it.
CEO & Founder of HelloPrenup 🥂
Julia is the Founder and CEO of HelloPrenup. She founded HelloPrenup after years of working with individuals seeking a prenuptial agreement, and recognized the tremendous cost associated with getting attorneys on board to negotiate and draft a prenup agreement. Julia realized that the process for creating a prenup had to be less stressful, more efficient, and a lot more cost effective. Together with her years of legal training and experience as an attorney, HelloPrenup was born!
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