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 July 29, 2022

Signing a Prenup? Here are 14 Things to Consider

Happy couple sitting on a sofa and looking at prenuptial agreement on a smartphone

Planning for a wedding and divorce at the same time might feel like you’re setting yourself up for failure. However, financial experts will tell you getting a prenup can strengthen a marriage by getting future spouses to agree on essential money matters ahead of time, as well as accounting for what each might bring to the union, such as children, assets, and debts.

And, in the unfortunate event of a divorce, it also settles important decisions before the relationship has ended and emotions rule. So, let’s review what a prenup is, and why you should consider signing one.

What is a premarital agreement?

A prenuptial agreement–or prenup–is a legally binding contract created by two people before marriage. A prenup lists all the assets and debts belonging to each person and specifies who gets what, should a split occur.

1. Benefits of a prenup

You have health insurance, home insurance, and car insurance; think of a prenup as insurance for your marriage. It protects you and your future spouse’s assets, children, and families by pre-determining what happens with:

  • Premarital assets and debts: A prenup can list each person’s assets and debts before getting married. This can help determine how these will be treated after getting married.
  • Marital assets and debts: Assets and debts gained during the marriage are generally shared by both spouses. However, a prenup can keep specific assets or debts accumulated during the marriage separate.
  •  Post marital assets and debts: A prenup also dictates how assets and debts will be divided post-divorce, avoiding further contention in the settlement, as well as preventing the state from determining the distribution of assets.
  • Children: If a spouse has children from a previous relationship, a prenup can dictate how those children will be financially taken care of, and who will get what in a future inheritance.
  •  Family: If a spouse has a family business, property, or other assets, these can stay in their family if this is spelled out in the prenup.
  • Responsibilities: Important marital expectations can be predetermined, such as:
    ° Who will be responsible for specific expenses.
    ° How tax returns will be filed.
    ° How bank accounts and investments will be dealt with.
    ° Creation of agreements on large purchases and sales.

2. Prenup vs. Postnup

A postnuptial agreement differs from a pre-nuptial agreement—in that this document is created and agreed to by both spouses after entering the marriage. Otherwise, these are similar legal documents that specify what will happen to marital assets if a couple divorces or one spouse dies. Each has certain pros and cons, such as:

  • A prenup can push couples to agree on foundational financial matters before getting married. That can strengthen the marriage, as it alleviates future misunderstandings.
  • A prenup can also alleviate one partner’s fears that the other is getting married for financial gain.
  • A prenup is created during what is often the most positive and hopeful time in a couple’s life. This can make this sensitive document easier to agree on. However:
  • Some couples feel that a prenup taints the future marriage or is a sign of one partner’s lack of commitment. In this case, a postnup would be the better option.
  • A postnup can address a significant financial change such as an inheritance received by one of the spouses, or a business windfall.
  • A postnup can address previously unknown debts or assets held by one partner. However:
  • A prenup can be more enforceable. Divorce courts tend to presume that coercion is less likely when independent people have combined their assets before marriage.

3. Start an honest conversation

Money issues are a leading cause of divorce. This is why an honest discussion of assets, financial expectations and responsibilities is so important, either via a prenup or postnup. However, the longer you wait, the harder this discussion can be, as assets become mixed, along with emotions. The sooner a couple starts to deal with money matters, the better.

4. Stay organized

A prenup or postnup can create a clear blueprint for division of assets, debts, and financial responsibilities. However, if a couple does not keep track of the above, it can:

  • Create a strain on the marriage as assets combine, and responsibilities are not met.
  • Create a contentious, protracted and expensive divorce, should that eventuality occur.

5. Prenups can be amended

Prenups can be amended, if both partners agree to the modifications. A large inheritance or the birth of children can be the cause for modifications to the initial agreement. If one partner will not agree to any modification, the other may seek to invalidate the prenup.

6. You can’t include everything

Not everything can be included in a prenup. Though the laws on this can vary from state to state, here is a list of things most states won’t allow:

  • Provisions concerning anything illegal: You cannot include anything illegal in your prenup. Doing so can invalidate the document as a whole.
  • Provisions concerning child support or custody: A prenup cannot include child support or child custody issues. The court will have the final say on the specifics of child support, along with all custody arrangements.
  • Provisions waiving the right to alimony: Many states do not allow this provision, and even if they do, it is likely to be struck down by the court.
  • Provisions incentivizing divorce: If a prenup contains any provision that might provide financial incentives to proceed with divorce, chances are the court will set it aside.
  • Provisions concerning personal matters: A prenup cannot include provisions that detail personal matters, like how to raise children, which relatives can interact with the children, and where holidays must be spent. A prenup is meant to address financially-based issues.

7. Credit and debt

Without a prenup, creditors can go after joint assets even if only one spouse is the debtor. To avoid this, create provisions detailing debt liability in the prenup.

8. Working or non-monetary contributions

A prenup can also establish the monetary value of working or non-monetary contributions to a marriage, such as being a stay-at-home spouse, which often entails making career sacrifices.

9. Premarital Property vs. Marital Property

A prenup can list the property each partner brings into the marriage, differentiating this from the property acquired during the marriage. The pre-marital property remains with the spouse who owned it prior to the marriage. The property acquired during the marriage is shared.

10. Alimony and child support

A prenup can specify whatever alimony terms a couple wants–except completely waiving the right to alimony–which is often rejected by the court. A prenup cannot pre-determine child support, however. The court will make this decision.

11. Your Prenup Could Be Invalidated

A prenup can be invalidated for the following reasons:

  • Unconscionability: This means there are provisions in the agreement that are clearly unfair. A financially unconscionable provision might leave one partner destitute. A morally unconscionable provision might detail specific intimate acts that are required.
  • Failure to disclose assets: Each partner must make full disclosure of their assets. The prenup can be thrown out if one partner hides assets or income.
  • Coercion: A prenup can be invalidated if one partner was coerced into signing it or did not have the proper mental capacity to sign. Examples: a prenup was sprung upon one partner just before walking down the aisle or when one prospective spouse was sick and on drugs.
  • The paperwork isn’t properly filed or drafted: A prenup is like any other legal document. Sloppy execution can render it invalid.
  • One partner signed without proper legal representation: Each prospective spouse should have their own independent lawyer. If one doesn’t, this can be grounds for invalidation.

12. You don’t need a lawyer

Sorry, each partner needs to have their own legal representation. If you don’t, your agreement can be invalidated simply on those grounds. A prenup is a complex, customized legal contract that must be executed properly and fairly to be enforceable.

13. Contractual costs

The cost of a prenup will range from $1,000 to $10,000. The reason for this disparity in price is due to:

  • The city and state the couple resides in.
  • The number of assets and debts each person has.

The more each person owns, and owes, the more complex the prenup will be, which will increase its cost.

14. Sign at least 30 days before the wedding

Again, a prenup is a complex legal contract that must be executed properly to be enforceable. So, get the prenup process started 6-8 weeks before the wedding, and get it signed at least 30 days before the ceremony.

Frequently Asked Questions

Is signing a prenup a good idea?

Yes. A prenuptial agreement can strengthen a marriage by forcing the couple to agree on essential money matters.

What happens when you sign a prenup?

Once you sign a prenup, you have agreed to a legally binding contract that dictates the division of marital assets and debts should divorce or the death of a spouse occurs. Before you sign a prenup, it would be a good idea to get a detailed understanding what a prenuptial agreement does.  If you are wondering, should I sign a prenup? – show the document to your own lawyer before you sign.

Should I be offended by a prenup?

No–unless the prenup has unfair provisions, or you are coerced into signing.  If your partner asks you to sign a prenuptial agreement be sure to show it to your own lawyer before doing so.

What do you need to know before signing a prenup?

You need to know your partner’s premarital assets and debts, as well as your own. You might also be wondering, how much is a prenup?—It can range from $1,000 to $10,000 in cost, depending on the state you live in and the complexity of the agreement. 

Do prenups ruin marriages?

No, they can help a marriage succeed by alleviating future misunderstandings. However, should you sign a prenup under duress or coercion, this can be a predictor of future problems. If that is the case, and you are wondering, are prenups enforceable?—the answer is not always. A prenup can be invalidated if one partner was coerced into signing it.

Does a prenup mean you get nothing?

No. A prenup ensures a proper division of marital assets along with spousal support should you and your spouse divorce. If you are still wondering, should I sign a prenuptial agreement?—we suggest you contact a family lawyer at LegalShield. We offer expert, on-demand legal assistance that will cost a fraction of what it would with a traditional law firm. Whether it’s help with a prenup, adoption papers, custody rights, divorce—or any of the legal issues that simply come with life—find a membership plan that works for you.

Pre-Paid Legal Services, Inc. (“PPLSI”) provides access to legal services offered by a network of provider law firms to PPLSI members through membership-based participation. Neither PPLSI nor its officers, employees or sales associates directly or indirectly provide legal services, representation, or advice. The information available in this blog is meant to provide general information and is not intended to provide legal advice, render an opinion, or provide any specific recommendations. The blog post is not a substitute for competent legal counsel from a licensed professional lawyer in the state or province where your legal issues exist, and the reader is strongly encouraged to seek legal counsel for your specific legal matter. Information contained in the blog may be provided by authors who could be a third-party paid contributor. All information by authors is accepted in good faith, however, PPLSI makes no representation or warranty of any kind, express or implied, regarding the accuracy, adequacy, validity, reliability, availability, or completeness of such information.

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