What to Consider When Writing a Prenup

By Lia Kopin-Green
May 26, 2022

Are you contemplating writing up a prenuptial agreement between you and your spouse before you get married? Here are a few important points to take into account throughout the process.

1. They are not just for the rich

Many believe that prenuptial agreements are for wealthy celebrities or rich heiresses who wish to protect their fortunes. However, it is a misconception that one has to be wealthy in order to issue a prenuptial agreement. Prenups are often known as marriage insurance and are considered a good idea for anyone getting married, regardless of their net worth. Even though no one enters a marriage planning to get divorced, prenups can end up saving couples plenty of time, money, and hassle in the future.

2. Have the conversation ahead of time

Although both parties must eventually sign a prenuptial agreement, one spouse typically initiates the process by bringing up the idea. Prenups are known to be a delicate subject to discuss with a potential spouse. Naturally, engaged couples are usually uncomfortable with the concept of planning what would happen in the event of a divorce. Nonetheless, it is highly advised to have the conversation as early as possible. This gives the other partner time to wrap his or her mind around the plan. Spouses may be opposed to a prenuptial agreement at first, but after some time, they may warm up to the idea. Discussing a prenup beforehand also allows for more time to negotiate the terms of the actual agreement.

3. Fully disclose your assets and liabilities

The main component of a fair prenuptial agreement is the full disclosure of all assets and liabilities from both parties. A spouse who fails to disclose assets does not allow the other to fairly negotiate for different rights, thereby risking enforcing the prenuptial agreement. Collect and submit all of your most recent financial records such as bank statements, retirement accounts and appraisals. Moreover, do not forget to gather statements of liabilities like credit card debt statements, mortgages, student loans and personal loans. Remember: transparency is the key to an enforceable prenup.

4. Clearly divide marital and separate property

Prenuptial agreements are often drawn up in order to properly define the property that will remain separate if a couple chooses to divorce. Prenups can also stipulate marital property that belongs to both parties and will be split between the couple if they get divorced. The contract can also stipulate how the marital property should be divided. If a couple does not sign a prenuptial agreement or does not mention the division of property in the agreement, the judge will distribute property according to state laws. 

5. Spousal support provisions in prenuptial agreements

If done correctly, a prenuptial agreement can shield a spouse from paying alimony or specify the conditions under which alimony will be paid. The contract can completely waive either one or both of the spouses’ rights to spousal support in the event of a divorce. Alternatively, prenups may be able to guarantee the right to alimony in some cases. These provisions can be helpful in providing the couple independence regarding alimony so that the divorce court will not apply the state’s spousal support laws following a divorce. However, several states do not allow spousal support whatsoever in prenuptial agreements. It is advised to check your state’s laws concerning alimony clauses before drafting a prenuptial agreement.

6. Child custody and child support decisions cannot be included

While a prenuptial agreement can be incredibly valuable in determining issues such as alimony, debt distribution and distribution of property following a divorce, there are a few things that cannot be stipulated in a prenup. The court has the power to calculate child support and determine child custody in the “best interest of the child,” so these issues cannot be established in a prenuptial agreement.  After all, children have a right to receive child support and one cannot predict the events of a marriage that will make one parent more suitable to claim custody over the other.

7. Lifestyle clauses are not always enforced

Contrary to the above terms, lifestyle clauses do not pertain to property or finances in the marriage. These provisions can include financial ramifications for violating a certain act. For example, a couple may choose to mention a penalty for infidelity in their prenuptial agreement. More rare lifestyle clauses can refer to random drug testing, custody of pets, and limitation of social media usage. Be that as it may, certain states might not enforce lifestyle clauses in prenuptial agreements. For instance, the state of Florida prevents any “unreasonable” provisions from being enforced in a prenup. Before incorporating lifestyle clauses into a prenuptial agreement, make sure to check the laws of your state.

8. Hire an experienced divorce attorney

Prenuptial agreements can affect your life for decades to come. With so much on the line, it is crucial to have proper legal representation while drafting a prenup. Not only is it highly advised to enter a prenuptial agreement with the help of a divorce attorney, but some states even require the parties to have his or her own legal representation. A good divorce lawyer will draft a customized agreement that will take into account both you and your spouse's wishes while keeping you informed regarding the contract’s potential implications.

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