What Happens When You Sign a Prenup?

Nov 28, 2021 | California Prenuptial Agreements, Prenuptial Agreements, Relationships, Second Marriages

“Happy marriages look to the future not the past” – Dale Pattridge

Whether you’re newly engaged or in the midst of planning your wedding extravaganza, there is never a better time than to stop and think about what you want your marriage to look like down the line. 

While we know that your marriage will be long, loving, and full of happiness, we still think it is important to talk about the tough stuff- like finances. 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.

So, before you walk down the aisle, why not spend some time thinking about your future and how you a prenup can protect your assets and create clarity with respect to finances. 

If you’re unfamiliar with what a prenuptial agreement involves, then read on for a few details you should know. 

What is a prenup?

A prenup (also known as a prenuptial agreement or premarital contract) is an effective ways to provide you and your partner with clarity regarding assets and protection if your marriage doesn’t work out.

A prenup is a legally binding contract that provides specific instructions on how matters should be handled or settled during divorce proceedings. A prenup outlines all assets, debts, finances, and property brought into the marriage by each person and clarifies how these will be divided if the couple separates. They are also useful tools for providing instructions on inheritance and estate planning, as well as stipulating how family or personal issues should be managed if a couple splits.

What does a prenup cover?

There is no standardized one-size-fits-all prenup. Each contract should be individually tailored to suit the personal and financial situation of each couple. 

This type of contract can be used to:

  • protect most types of assets such as cash, investments, real estate, pensions, and future inheritances
  • safeguard children’s inheritance 
  • allow one party to retain a business where applicable
  • protect a spouse from being responsible for their partner’s debts

In today’s world of online visibility, some couples have also included provisions to prevent the use of social media to post negative, derogatory remarks or share personal details during a divorce. If you’re interested in whether you can incorporate certain provisions such as these in your prenup, then check out our clauses page on HelloPrenup to read through your options.   

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. 

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 decisions on child custody, child support, parenting time and visitation rights. 

You cannot use your prenup to reference child support and custody plans for the future. These are the rights of your child, not your rights- so, you cannot contract them away. 

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!

Some people may feel that a prenup is an indication that one party is not really committed to the longevity of the relationship or that they don’t feel that the relationship will last. We disagree. A prenup is a great opportunity to open the lines of communication between the parties, lay down all the cards on the table, and clarify any points of ambiguity before the wedding. 

With that in mind, one could argue that this type of honesty and openness could strengthen a relationship…

As we’ve already said, there are no rules about how rich you need to be to get a prenup! 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

What happens if you get divorced and have a prenup?

For a prenup to be thrown out by the courts it must be deemed unenforceable or invalid.

The laws of each state vary greatly, and validity in those states depends on each states rules and caselaw. Generally speaking, a prenup must meet the following conditions”

  • The contract must be in writing, signed and witnessed 
  • There must be a full disclosure of assets before the contract is signed. If either party is found to have undisclosed assets, then it could render the agreement unenforceable. Some states allow for a waiver of disclosure of assets- but this is very specific to the state, and dare we say, questionable. 
  • You may need legal representation to make your contract binding. Not every state requires both parties to have legal representation, but it is compulsory in some. More information about what is required in your specific state can be found here.
  • The agreement must be voluntary. If a party was forced, threatened, or coerced into signing it then the contract could be deemed void

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 how much a spouse will receive if their husband or wife dies. It can also state that a spouse is not permitted to make a claim against the deceased’s estate if the will is consistent with the terms of the prenup.

You might question the point of including details of who will inherit what in a prenup following a spouse’s death. After all, prenuptial contracts are about divorce whereas wills are for death and estate planning.  However, you may consider including a death provision to detail what provisions will be made available to a spouse in the event of death. This is especially important when there are children from previous marriages or relationships to consider, or in instances where a spouse does not plan to leave their entire estate to their husband or wife.

What happens if you don’t sign a prenup?

Understanding the implications of not getting a prenup or refusing point blank to discuss the idea of it with your partner is very important. 

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 may be subject to your state’s divorce law. 

In a prenup, you can stipulate which of your current and future assets are marital property and which are separate property. This is an important distinction to make as it will determine how they will be dealt with if you divorce. 

Separate property (oftentimes thought of as premarital property) refers to any assets or finances one party had before the marriage, or assets they would like to deem as separate, even if they were acquired during the marriage. This may include any that were obtained through gift or inheritance. Generally speaking, it is separate property that spouses predominantly look to protect through a prenup. 

Marital property references those assets that both spouses gain during the marriage, or assets they would like to be considered as part of the marital estate. 

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 often be split on an equal 50/50 basis. In an equitable distribution state then the division of property will be decided by a judge based on a variety of factors.

Having a prenuptial agreement is a good way of avoiding lengthy, expensive, and upsetting 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 cause protracted litigation if one partner passes away. 

Prenups are one of the most useful legal tools available for couples who are getting married, with a legally binding prenup benefitting you, your partner, and your marriage as a whole. 

If you are interested in getting a quick, efficient, and seamless contract through HelloPrenup, then why not reach out to us today! 🙂 

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