A prenuptial agreement (or "prenup") is an agreement between two people who are planning to marry that establishes financial rights and responsibilities during the marriage, and after it ends. Without a legally enforceable prenup, state law will determine what happens to your property when the marriage ends because of divorce or death. Premarital agreements are usually drafted with the assistance of family lawyers.
Historically, prenups were usually seen as a way for wealthy people to protect themselves from "golddiggers," but in reality they are relevant to a much broader population. Another common misconception is that prenups are divisive. In truth, they present an opportunity to understand each other's financial expectations and give the marriage a healthy start. Conversely, settling financial arrangements after a relationship has soured can be an acrimonious and expensive proposition. A prenuptial agreement can ease the monetary stress that weighs on many marriages, because it makes the financial future certain even if the marriage is not.
Why Do You Need a Prenuptial Agreement?
Often, a prospective spouse is planning to sacrifice education, job training or a promising or established career in furtherance of the marriage and family. If you are planning to make such a sacrifice, a prenuptial agreement can help you safeguard your financial future. If you have family property you wish to keep separate, this can be accomplished with a prenup. If you are entering into a second or third marriage, or a marriage later in life, you likely have hard-earned assets (e.g., a professional practice) and children to protect. A premarital agreement can protect those assets and set aside property for your children.
When a marriage ends in divorce, property acquired during the marriage ("marital property") and even some property acquired prior to the marriage ("separate property") will be divided equally, or equitably, depending on state family law statutes. When a married person dies, most states give the surviving spouse one-third to one-half of the estate, even if their will says otherwise. However, the terms of a valid prenuptial agreement usually supersede the state divorce and estate laws. Contact a family attorney to see if the laws in your state complement your future financial wishes or if a prenup is better for you.
What Can You Do with a Prenuptial Agreement?
Some of the more common uses for a prenuptial agreement include:
- Division of marital property. For example, a prenup can dictate what will happen to the family home (i.e., will someone keep the home or will it be sold, and if so, how will proceeds be shared?)
- Setting spousal support (alimony). However, many states do not allow you to waive your right to spousal support.
- Protecting children from prior relationships. If you set aside property to pass to children in a valid prenup, it should withstand any claims or challenges from your spouse or other heirs. An attorney can help you coordinate your prenup with trusts, wills and other estate planning tools.
- Keeping property in the family. From family businesses to heirlooms and future inheritances, you can designate property as separate from marital assets with a prenup.
- Clarifying financial responsibilities in the marriage. For example, the prenup can include an agreement to support a spouse in school or dictate who pays the credit card bills and balances the bank accounts.
- Protecting each other from debts. You can choose which debts are to be paid with separate property and which with marital property and limit your exposure to creditors.
Will My Prenuptial Agreement Be Enforced?
Each state has different rules as to what constitutes a legally enforceable agreement. Generally speaking, most states uphold or amend pre-nups to promote fairness, though the meaning of fairness can vary greatly. In addition, most states require the following conditions:
- Both parties must make a full disclosure of all assets, liabilities and other items related to their financial position.
- The agreement must be signed and in writing.
- Each party should have independent legal representation.
- Each party must have entered into the agreement free from fraud or duress (e.g., if you hand the agreement to your spouse on the way to the church it probably won't be enforced).
The provisions of a prenuptial agreement are only enforceable with respect to financial matters. Any other provisions are non-binding and may even affect the enforceability of the agreement altogether. Some examples of what you should not do in a prenup are:
- Settle non-financial issues. Dividing household chores, responsibilities concerning pets, decisions about having and raising children and stepchildren, and other non-financial marital issues do not belong in a pre-nup, period. A family lawyer can help you draft a separate agreement between you and your spouse if you feel strongly that these issues need to be settled in a legally enforceable contract.
- Waive alimony. Many states do not allow you to waive your right to receive alimony, and even if they do allow it, it is subject to heavy scrutiny.
- Anything unconscionable, meaning harsh or unfair.
- Make child support and child custody arrangements. Every state mandates that child support and child custody arrangements be in "the best interests of the child." They cannot be bargained for, and a prenup is no exception.
- Encourage divorce. A prenup that offers a financial incentive to divorce may be invalidated in its entirety.
- Anything illegal.
A prenup is not necessarily right for everyone. For some, a pre-nup can create an air of distrust and burden a relationship that is not yet equipped to handle it. For others, it is not feasible to project future financial needs. Worse still, the less wealthy spouse may give up property he or she is otherwise entitled to or the spousal support may not sustain the lifestyle he or she is accustomed to. Contact an attorney to discuss whether a prenuptial agreement is right for you.
Do I Need a Lawyer?Ironically, you will need to contact an attorney to see if you need legal representation. In many states, independent legal representation is required, and in others, sharing or waiving counsel can be a red flag to a judge. Even if independent representation is not required, it is evidence of fairness and may help your prenup withstand a challenge.
Approximately 85 percent of Americans are expected to marry at some point in their lives.
Source: David Popenoe and Barbara Dafoe Whitehead, The State of Our Unions: The Social Health of Marriage in America, 2007 (New Brunswick, NJ: The National Marriage Project at Rutgers University, 2007) p. 7.