The sad reality is that nearly 50% of all marriages end in divorce. The best way to prevent that? Talk about the unsexy stuff before you tie the knot.
Spend some time thinking about your future and how a prenup can protect your assets and create clarity with respect to finances before walking down the aisle with your future spouse. We believe that prenups should be the future backbone of every marriage and should be considered by every couple, regardless of wealth, amount of assets, or length of relationship.
If you’re unfamiliar with what a prenup involves, then read on for a few details you should know.
What does a prenup cover?
There is no standardized, one-size-fits-all prenup. Each contract should be individually tailored to suit each couple’s personal and financial situation.
Here are just some of the topics you can cover in a prenup:
- Assets: Protect assets such as income, cash, investments, real estate, pensions, and future inheritances. You can even protect future assets that you haven’t earned yet in a prenup.
- Alimony: Depending on your state, you may outline alimony terms in your prenup. For example, waive the possibility of paying alimony altogether, modify it, or limit it in some way.
- Protect children from other relationships: If you have kids from another relationship, you may want to protect them financially. With a prenup, you can make sure all of your money goes to your kids, not an ex-spouse.
- Outline business interests: Allow one party to retain business interests where applicable. Whether you have an existing business or plan to open one in the future–a prenup can help ensure you retain 100% of the value.
- Debt protection: Does your partner have staggering student loan debt or crippling credit card debt? Make sure each spouse’s debts stay their own, and neither party becomes responsible for the other’s financial decisions.
- Confidentiality: Ensure private information, such as financials, prenup info, and business matters, stay private. This is especially crucial for public figures, business owners, and anyone with family wealth.
- Lifestyle clauses: Other miscellaneous clauses such as social media clauses, no-cheating clauses, pet clauses, etc., depending on your state’s allowance of such provisions.
- But wait–there’s more!
Bottom line: Prenups typically cover financial issues, but sometimes, they can also include non-financial matters, such as pet custody, infidelity, etc.
Does a prenup cover child custody or child support?
Nope! There are limits on what a prenup can contain, and some of these restrictions include prohibiting decisions on child custody, child support, parenting time, and visitation rights.
The takeaway is you cannot use your prenup to reference child support and custody plans for the future. These are your child’s rights, not your rights, so you cannot contract them away. The state has an interest in ensuring child support and child custody are arranged in a way that is in the child’s best interests, not simply what the parents agreed to in a prenup.
What happens when you sign a prenup?
While a prenup is something that is theoretically not used until a couple divorces, they are drafted and signed before the marriage takes place. Yes, you must negotiate, draft, and sign your prenup BEFORE you get married!
There are no rules about how rich you need to be to get a prenup! Anyone can get a prenup, even if you have no money (yet). Wanting to have a happy and successful marriage has nothing to do with how much money you have in the bank.
In fact, being sensible about having a prenuptial agreement demonstrates your commitment to look after both your money and your marriage.
Some people report that when they sign a prenup, it can:
- Provide peace of mind
- Provide protection for the future
- Promote openness and fairness within the marriage
- Promote open communication about your future
- Open the lines of communication, leading to a stronger, happier, and healthier marriage going forward
Plus, after a 2023 survey of HelloPrenup customers, 83% said they felt more connected to their partner after going through the prenup process.
What happens if you get divorced and have a prenup?
If you get divorced and have a prenup, you and your partner will follow the terms of the prenup, and your respective divorce attorneys will file orders with the divorce court stating that certain topics are already pre-determined.
A prenup’s validity only comes into question if it is challenged by one party. For a prenup to be thrown out by the courts, it must be deemed unenforceable and/or invalid.
The laws of each state vary greatly, and validity in those states depends on each state’s rules and case law.
In most states, though, there are similarities in what is required of a valid and enforceable prenup:
- Written & Signed: The contract must be in writing and signed
- Financial Disclosure: Before the contract is signed, assets, income, and debt must be fully disclosed. If either party is found to have undisclosed assets (whether intentional or not), this could render the agreement unenforceable.
- Notarization: Only a few states statutorily mandate notarization, but most attorneys nationwide will recommend it because it’s such an easy way to add a layer of protection for your prenup.
- Signed Voluntarily (No Duress/Coercion): Both parties must voluntarily sign the agreement. If a party was forced, threatened, or coerced into signing it, then the contract could be deemed void.
The bottom line: Getting a divorce with a prenup is a cakewalk compared to getting a divorce without a prenup. Things only get sticky if your partner decides to challenge the prenup, which is an extremely time-consuming and costly endeavor. (Remember, folks, it costs lawyers an expensive amount of time to come up with legal arguments to contest a prenup in court).
What happens if you sign a prenup and your spouse dies?
While most people consider a prenup as being a useful tool during divorce, they can offer a lot more than that. This type of agreement can also be used to detail certain inheritance rights if one of the spouses dies.
This can be achieved by including a death clause in the prenup, which may state that either spouse waives their right to inherit from the other spouse and also may include requirements of an estate plan or point to an estate plan as the method of distributing assets.
Example: If your spouse dies and you have a prenup that says neither spouse may inherit from the other, then neither spouse can take anything from the deceased spouse’s state (unless it says so in their will). This can be useful for couples who have children going into their marriage and want to ensure their kids get everything.
What happens if you don’t sign a prenup?
Prenups allow you to make your own rules with respect to your marriage and to circumvent state law in the event of a divorce. Therefore, if you don’t get a prenup and subsequently get divorced, then your assets are typically subject to your state’s divorce law (unless you and your partner can amicably come up with your own way, but this is less common).
Without a prenup, there are two ways in which a divorce court will divide marital property:
- If you live in a community property state, then assets accrued during the marriage will be split on an equal 50/50 basis.
- In an equitable distribution state, the division of property will be decided by a judge based on a variety of factors (i.e., it will be split “equitably”).
Why getting a prenup matters:
- It is a good way of avoiding lengthy, expensive, and upsetting divorce discussions.
- If you intend to split your marital property on an equal 50/50 basis, then you can include this provision in your agreement instead of leaving it up to the presiding judge or state law to decide.
- Not having a prenup can also cause debates over spousal maintenance or support, the splitting of other partial assets, and protracted litigation if one partner passes away.
The bottom line
If you’re serious about building a future together, consider a prenup as your first joint-task together as a future married couple. It’s not a sign of distrust but a proactive step towards open communication, financial clarity, and protecting both partners’ interests. A prenup provides peace of mind, knowing important matters are pre-determined, potentially saving you significant stress and heartache in the event of an unforeseen divorce or the passing of a spouse. Think of a prenup as an investment in the health of your marriage, simplifying the complexities of ‘what if’ scenarios and allowing you to focus on building a strong, loving partnership.
Julia Rodgers is HelloPrenup’s CEO and Co-Founder. She is a Massachusetts family law attorney and true believer in the value of prenuptial agreements. HelloPrenup was created with the goal of automating the prenup process, making it more collaborative, time efficient and cost effective. Julia believes that a healthy marriage is one in which couples can openly communicate about finances and life goals. You can read more about us here Questions? Reach out to Julia directly at Hello@Helloprenup.com.
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