Congrats on tying the knot and deciding to get a prenup! All that’s left to do is pick out that venue, have those bachelor/bachelorette parties, and decide what to put in your prenup! No need to look any further; we’ve got you covered on what you should put in your prenup. There are a plethora of clauses to include, and we’ve written down quite a few for you. You can start by watching this quick video on five clauses you should consider in your prenup.
Property acquired before marriage
This is a classic topic to cover in a prenup. It basically asks you: how do you want to treat property that you bring into the marriage? Do you want it to be considered your separate property, not subject to division in the should you get a divorce, or are you okay with it possibly becoming marital/community property, subject to division?
For instance, let’s say you own a house before getting married. After getting married, you and your fiance move into the house. What happens if you sell this house and buy a new home for yourself and your spouse with the funds from your separate house? Should this be considered your separate property?
Other types of property to deem separate
There are various different types of property that you can deem separate. They include, but are not limited to, gifts, inheritances, investments, businesses, earned income, appreciation in value on separate property, and property acquired in exchange for separate property (like the example above). You can choose whether or not you want to keep these things separate property and, thus, not subject to division in a divorce.
Spousal support, sometimes referred to as alimony or maintenance, depending on your state, is financial support paid from one ex-spouse to the other. You may include provisions regarding spousal support in your prenup. You can waive it altogether and say neither of us wants to be subject to spousal support in the event of a divorce. You can also limit it in a certain way. For example, you could include a clause that modifies spousal support based on the length of your marriage. You could say if the marriage is under ten years long, you each will waive your right to spousal support. So, let’s say your marriage at the time of divorce was only nine years, then you would leave the decision of spousal support up to a court.
Ahh, wonderful debt; it’s such a fun thing to talk about, am I right? Okay, all jokes aside, you can include debt provisions in your prenup to determine how debt is handled in the event of a divorce.
There are two types of debt to think about: debt incurred prior to marriage and during the marriage. Some questions to get the brain juices flowing:
- How do you want to handle debt that was accrued prior to the wedding day?
- Should pre-marital debt remain separate or become joint?
- What about debt accrued during the marriage?
- Should debt accrued during the marriage remain separate (whoever’s name is on it), or should it be joint marital debt?
- Do you want to leave it up to a judge to decide what happens to any debt accrued during the marriage?
With today’s staggering number of student loans and credit card debt, it might be a good idea to start thinking about debt clauses in a prenup.
Inheritances and gifts
Grammy and Grampy planning on handing down some cold hard cash? Or maybe Mom and Dad are super generous and love to gift you $10,000 for Christmas every year (that would be a gift, not an inheritance). How will you treat gifts and inheritances in the event of a divorce?
For example, let’s say Amy and Mark are married and have a prenup that says each person’s inheritances are their own separate property. A few years into the marriage, Amy gets an inheritance from Grandma in the amount of $1,000,000. Wow! Fast forward another few years, and Amy and Mark’s marriage comes to an end. In the divorce, as long as the court deems the prenup valid and enforceable, then she likely just protected her $1,000,000 inheritance from being split up with Mark. Phew! Thank god for prenups, am I right?
Yes, our furry little friends may have a place in our prenups. In most states, pets are considered personal property, and you can generally include who gets ownership of the pet in case of a divorce, or “pet custody,” if you will. This includes custody and the costs that come along with a pet, such as medical care and food. Some states even allow you to include a visitation schedule with the pet in your prenup.
Life insurance clause
Do you want to require your honey to maintain a life insurance policy with you as the beneficiary, and a certain death benefit value? Well, you can do that in your prenup! It may not be romantic or fun to think about, but it sure is logical and reasonable. Many people would use this money to fund a funeral, medical bills, and any other costs that may arise.
Hold up–a confidentiality clause?! For a spouse?! That’s right; you can include a clause that requires the other spouse to refrain from disclosing private information to the public. This can be helpful for business owners, family wealth, fame, or maybe you’re just a super private person!
Social media clause
Yep, you read that right. It’s 2022, ya’ll! Nowadays, you can include a social media image clause that requires your honey to refrain from posting humiliating or disrespectful content about you. If your marriage comes to an end, and your future ex-spouse posts something humiliating or disrespectful of you, your spouse must pay monetary damages. For example, you can say, “I want my ex to pay $20,000 to me if they post something humiliating about me.” How’s that for retribution? At the end of the day, a judge will have the final decision on whether the social media content violated the clause or not.
A sunset clause is basically an expiration date on your prenup. This could be 10, 15, 20, or any number of years past the wedding day that you two believe the prenup will no longer be meaningful.
Let’s use an example to demonstrate how a sunset clause can help balance a relationship. Michael and Sarah are engaged to be married next year. Michael is an accomplished engineer who has a significant amount of wealth compared to Sarah. Sarah is a barista who has fewer assets and a modest income. Michael worries that if they were to divorce, he would lose a significant amount of wealth, so he proposes a prenup to Sarah. To even the playing field, Sarah suggests a sunset clause that will allow the prenup to expire on their 15th wedding anniversary. This gives Michael the reassurance that she’s not just “in it for the money,” and if they ever do get divorced, if it’s been more than 15 years of marriage, the default laws of the state will be perfectly adequate to divvy up their property.
Don’t forget about this one! This is a key aspect to cover in your prenup and can even invalidate your prenup if you don’t do it right. Let’s back it up: financial disclosure is the sharing of financial information with your spouse via a financial schedule that is attached to the end of your prenup. You must state the value of all of your assets, and don’t even THINK about skimping here. There’s no room for rounding down on those student loans. If you do, you might as well throw the entire agreement out the window. Financial disclosure is important because your future spouse must be aware of your financial background and what rights they may or may not be giving away based on that information.
And that’s a wrap, folks! Now, keep in mind this list is not exhaustive. There are other things you can add to a prenup. In fact, HelloPrenup has a full list of all the clauses you can include when you sign up. How it works is, HelloPrenup will walk you through a comprehensive questionnaire with all of the clause options you may include (or not include). Each partner will make their choice, and then there will be a negotiation phase to resolve any discrepancies between you and your partner’s answers. All that’s left? Generate that prenup, sign, and notarize!
Nicole Sheehey is the Head of Legal Content at HelloPrenup, and an Illinois licensed attorney. She has a wealth of knowledge and experience when it comes to prenuptial agreements. Nicole has Juris Doctor from John Marshall Law School. She has a deep understanding of the legal and financial implications of prenuptial agreements, and enjoys writing and collaborating with other attorneys on the nuances of the law. Nicole is passionate about helping couples locate the information they need when it comes to prenuptial agreements. You can reach Nicole here: [email protected]