Do I need a Prenuptial Agreement?

We are getting married, but he asked me for a prenuptial agreement, do we need one?

A prenuptial agreement (“prenup”) is a written contract that is created by two people before they are married. A prenup typically contains a list of all property each person owns and a list of the debts each party has incurred. The purpose of a prenup is to specify what each person’s property rights will be in the event of divorce.

Without a doubt, there is a stigma attached to prenups. However, a prenup can be a great opportunity for you and your future spouse to get on the same page about planning your future together as husband and wife. Another misunderstanding about prenups is that they are only for the wealthy or for people who will not commit. None of these assumptions are true and a prenup can be helpful in many different situations.

While a prenup can be prepared by the parties, it is recommended that you work with an attorney as they have the knowledge of how courts typically deal with prenups and will know what language the prenup shall include and what language to avoid. It is recommended that both parties utilize their own attorney to advise them before executing a prenup. While one attorney can assist both parties with drafting a prenup, an attorney can only represent one of the parties. Therefore, if you are not the client, you will not be getting any legal advice from the attorney and you may not be fully aware of what you are agreeing to. It is extremely important to ensure that the prenup is clearly written, is understandable, and is legally sound. If a judge determines that language in a prenup is frivolous, unfair, or fails to meet any requirements, it could be disregarded during divorce proceedings.

Several things can be addressed in a prenup and the following are a few examples:

1. The payment of spousal support/alimony
2. Protection of debts
3. Disclosure of assets, debts, and obligations
4. Division of property in the event of death of either party or divorce
5. Inheritance of property to your children from any prior relationship
6. Owning of a business

What cannot be included in a prenup is custody or child support. If you already have children with your future spouse, you are precluded from including details about child support or custody in your prenup. In the event of a divorce, these issues will need to be addressed at the time of the divorce.

If you have children from a prior marriage or relationship, a prenup can assist with passing down property to your children in the event of your death. Without a prenup, in the event of your death the laws of your state will determine who owns your property, and your children could then be precluded from inheriting any of your assets.

Prenup or not, a divorce can still bring on many challenges and is definitely a life changing event. Having a prenup can help to avoid arguments and can avoid a lengthy contested and costly divorce. If the division of property and debts are specified in advance, there will be fewer contested issues in the divorce. Fewer contested issues will result in less time that a divorce is pending, less stress on the parties and less money in attorney’s fees. A prenup can also provide financial stability for you after the divorce and can offer protection from your spouse leaving you buried in debt.

A prenup can be helpful if one of you does not work or does not plan to continue working after the marriage. After doing divorces for many years, we can say that the issue of the payment of spousal support is one of the most contested issues in divorces. The parties may agree during the marriage that one party will stay home and not work and then a contested divorce can change the whole story. A prenup can provide provisions for spousal support, a guarantee of a financial plan in the event of divorce.

A prenup can also determine certain elements and how they may phase in or out depending on the duration of the marriage. As with many things in life, marriage is never a guarantee. In the event your marriage comes to an end, having a prenup can save you a substantial amount of money, frustration and stress. Many couples have depleted their entire community estate while battling one another in court when it comes to property division, debt, or spousal support. A prenup can offer a quick and easy division of the community estate. Having a prenup is like having insurance coverage, you may never need it, but when you do you will be glad you did. A consult with an attorney can assist you in determining if a prenup is needed.