What to Put in a Prenup?
A prenuptial agreement is a personalized contract that outlines how assets, debts, and financial responsibilities will be managed during marriage and in the event of divorce.
Key elements to include in a prenuptial agreement are:
- The distinction between marital and separate property
- Full financial disclosure
- Debt protection
- Estate planning
- Provisions for children from previous relationships
- Spousal support terms
- Division of assets
- Treatment of business interests
- Community property rules
- Handling of joint bank accounts
- Household expenses
- Retirement benefits
- Inheritance rights
- Optional clauses such as infidelity and sunset provisions
Including these ensures clarity, fairness, and protection for both parties throughout the marriage and beyond.
What Are the Benefits of a Prenuptial Agreement?
When you and your spouse decide to get married, you’re combining all of your assets into one. Creating a prenuptial agreement helps protect both parties from debt and unfair asset division down the road. While no one wants to imagine themselves getting divorced in the future, a prenup can give you both peace of mind as you enter into the sanctity of your partnership.
There are many laws and rules that dictate what happens to your assets in the event of a divorce or death. With a prenup, you and your spouse can take control of your marriage, including specific instructions that are appropriate for both of you.
While creating a prenuptial agreement might sound intense, our firm recommends that every couple consider it. If you’re interested in a prenup or just want to learn more about them, our team is here to help you.
What Can a Prenup Include?
Prenups can be modified to meet your specific needs. While there are some general items that most prenups include, you may not need to add every single one to your document.
Our team will take a look at your circumstances and make recommendations based on your goals.
Prenups often include:
Marital Property vs. Separate Property
Marital property is property owned by you and your spouse that was obtained during the marriage. Separate property is the property you entered into the marriage with or received singularly during the marriage. Defining marital property and separate property is essential, as marital property is divided during a divorce while separate property isn’t.
Disclosure of Financial Information
Each spouse must provide a complete account of their debts, income, and assets. The financial disclosure from each spouse will influence the other terms in the prenup. It’s essential to provide an accurate account of your finances.
Debt Protection
Without a prenup, creditors can target marital property, even if the debt is only in one spouse’s name. You can limit your debt liability by separating your debt from your spouse’s.
Estate Plan Protections
A prenuptial agreement can help protect your estate plan and ensure that your wishes are carried out properly. For the best results, combine your prenup with a will or living trust.
Provisions for Children from Previous Relationships
If you have children from a previous relationship, you can ensure that they receive an inheritance from you if you pass away before your spouse. A prenup guarantees that your children get the assets they are owed, even if your spouse later remarries.
Spousal Support
In the event of a divorce, you or your spouse can request spousal support. These payments are made to support the lower-earning spouse until they can sustain themselves without assistance. You can include potential spousal support instructions in case the marriage ends.
Division of Assets
You and your future spouse can decide how to split up assets now in the event of a divorce. If you don’t, the court can decide how to divide your assets.
Business Interests
A prenup can outline how business interests owned by one or both parties will be treated during the marriage and in the event of divorce. This includes protecting businesses from being considered marital property and defining the division of any increase in value during the marriage.
Community Property and Joint Bank Accounts
Depending on your state’s laws, community property rules may apply, where marital assets are divided equally. A prenup can specify which assets remain separate and how joint bank accounts and other shared financial responsibilities are managed throughout married life.
Financial Responsibilities and Household Expenses
Prenups can also set expectations for financial responsibilities during the marriage, including how household expenses, bank accounts, and joint accounts will be handled, helping to prevent misunderstandings and conflicts.
Retirement Benefits and Accounts
You can address how retirement benefits and such accounts will be treated, including whether they are considered marital assets or remain separate. This ensures clarity on division of retirement accounts in the event of divorce.
Future Inheritances and Estate Rights
A prenup can protect inheritance rights by specifying which future inheritances will remain separate property and not be subject to division, preserving your financial security and estate planning goals.
Infidelity Clauses and Lifestyle Provisions
Some couples include infidelity clauses or lifestyle clauses that outline financial consequences or other terms if one party breaches certain agreements during the marriage. While not always enforceable, they can serve as deterrents or agreements between partners.
Sunset Clause
To address changing circumstances, a prenup may include a sunset clause that causes the agreement or certain provisions to expire after a set period, allowing for renegotiation or reverting to standard legal rules.
Legal Fees and Independent Legal Counsel
A prenup often specifies who is the person responsible for legal fees related to the agreement and divorce process. It is also crucial that both parties have access to independent legal counsel to ensure the agreement is fair and legally enforceable.
By including these provisions tailored to your specific circumstances, a prenuptial agreement can provide clarity, protect assets, and establish a fair framework for your married life and any potential future divorce.
What Can You Not Put in a Prenup?
Prenuptial agreements are powerful documents, but they can’t cover everything. There are some terms that the court won’t allow you to put into a prenup. You cannot include the following items in your prenup:
Child Custody and Child Support
If you and your spouse have children together, you won’t be able to include instructions for their custody or child support payments in the event of a divorce. This is because the court will always decide what to do with the best interests of the children in mind. The court’s primary concern is the welfare and safety of the children, and decisions regarding custody and support are made based on current circumstances, which can change over time. Therefore, any prenup provisions attempting to predetermine these matters are considered unenforceable.
Illegal Activities
Any statements pertaining to illegal activities cannot be included in your prenup. Including information about unlawful activities can put your entire prenup at risk of being thrown out. For example, clauses that require a spouse to engage in fraudulent behavior or waive legal rights that protect against illegal conduct will not be upheld by the courts. Ensuring that all provisions comply with the law is essential for the validity of the agreement.
Lifestyle Clauses
Some couples want to include instructions on what is to happen in the event of infidelity. The rules about lifestyle clauses like these are murky, and they aren’t always enforceable in court. While such clauses may be intended to deter certain behaviors or assign financial penalties, courts often view them as personal or moral judgments rather than legally binding terms. As a result, these provisions may be disregarded or deemed unenforceable, depending on the jurisdiction and specific circumstances.
Other Prohibited Provisions
Beyond the above, prenups cannot include provisions that waive child support obligations, as these are considered rights of the child and cannot be contracted away by the parents. Additionally, any terms that attempt to limit a party’s legal rights in ways that contradict public policy or state laws will not be valid. For example, agreements that limit a spouse’s right to seek a divorce or that attempt to predetermine custody arrangements fall outside what can be legally included.
It’s important to understand these limitations when drafting your prenup to ensure that the agreement is fair, enforceable, and tailored to your unique situation. Consulting with an experienced family law attorney can help you navigate these restrictions and create a comprehensive prenup agreement that protects both parties’ interests while complying with legal standards.
What Makes a Legally Valid Prenup?
For a prenup to be enforceable in court, it must stand up before a judge. There are a few elements of a prenup that must be included for it to be considered legally binding.
A prenup must be:
- In writing
- Signed by both spouses
- Signed before the marriage
Both spouses must have ample time to review the prenuptial agreement before signing. Each party is entitled to seek legal counsel and have their attorneys review the document. If one spouse feels pressured to sign or is not allowed ample time to review, the prenup could be thrown out.
Failing to disclose financial information or including inaccurate information can also lead to an invalid prenup. It is essential to provide true and accurate information about your finances, including your debts.
If you would like to create a marital agreement after you and your spouse are married, our team can help you draft a postnuptial agreement. While not as strong as a prenup, they can offer some of the same protections.
Why Do You Need a Lawyer for a Prenup?
A prenuptial agreement protects you and your spouse in the event of a divorce or death. Working with an attorney is the best way to create a prenup that stands up in court. Invalid or vague information could lead to questions and scrutiny.
Our team will ensure that your rights are protected and you are advocated for throughout the entire document.
Lawrence Law Office is here to support you in creating a prenup and protecting your marriage. If you’d like to learn more about a prenuptial agreement or you have any questions about it, please call our office today at 614-820-1195.
A well-drafted prenuptial agreement not only safeguards your individual assets but also clarifies financial responsibilities during the marriage. It can address important issues such as property division, spousal support, and how debts will be handled, providing clear expectations for both parties. Additionally, a prenup can protect family businesses, investment properties, and future inheritances, ensuring these significant assets remain secure.
Open communication between both parties is essential when creating a prenup. This transparency helps build trust and reduces the potential for misunderstandings later on. Each party should fully disclose their financial information to facilitate a fair and comprehensive written agreement.
Moreover, having independent legal counsel for both spouses is crucial. It ensures that the agreement is balanced, legally enforceable, and tailored to your specific circumstances, taking into account different laws that may apply depending on your location.
By proactively addressing these matters through a prenuptial agreement, you can enjoy peace of mind throughout your marriage and protect your interests in the event of unforeseen circumstances such as divorce or death.
