If you’re a realist and also an analytical person, you may be wondering what really happens when you get a divorce and you have a prenup. Is it truly as sweet as it sounds? Well, yes, as long as you have a valid and enforceable agreement, that is! A prenup can make your divorce quicker, less stressful, and even cheaper (less money spent on attorneys fees arguing property division). Keep reading to learn all about what happens if you sign a prenup and get divorced.
What is a prenup?
A prenup is a contract signed by two future spouses before they get married. It outlines various areas, such as property division, ownership of assets, alimony, inheritances, gifts, taxes, pet ownership, (sometimes) infidelity, and more. Prenups can outline issues that are relevant both during the marriage and in the event of a divorce. A prenup typically comes into play when people get divorced, but it can also be used for behaviors and issues that happen while married (such as maintaining a joint bank account and how you file taxes as a married couple).
Getting a valid and enforceable prenup
Getting a prenup requires careful legal consideration. There are rules around how to create a valid and enforceable prenup, and each state dictates those rules. For example, California has a few unique laws, such as their 7-day rule and their requirement to have a lawyer for alimony clauses. Other states have requirements for witnesses to sign the prenup, such as in Minnesota.
So, what are some of the requirements that make a prenup valid and enforceable? Well, again, it varies, but here are some of the common requirements that are true for many states:
- The prenup is in writing and signed by both parties
- At least two witnesses witness the prenup (this is true for only a handful of states)
- The prenup is notarized (this is true for only a handful of states, although many lawyers recommend it anyway)
- There is some level of financial disclosure provided by both spouses
- The prenup was entered into voluntarily by both spouses (no fraud, duress, coercion, etc.)
- The prenup is not unconscionable (meaning it “shocks the conscience” of the court)
- The prenup does not contain illegal terms or terms against public policy (such as child custody clauses)
And remember, some states have additional, unique requirements that others may not have. That is why it is important to work with prenup experts such as HelloPrenup and/or family law attorneys to ensure your prenup is state-compliant.
What happens if you get divorced and have a prenup?
So, you signed the prenup, you followed all of your state’s prenup rules, and you lived in marital bliss… for a few years. Unfortunately, now, you and your partner have grown apart, and you’re facing the daunting “D” word. What happens? Well, there are two paths that your situation may take:
- Path A: Both you and your partner agree to the terms outlined in the prenup. While you may not particularly like the terms, you’re not inclined to contest it or you lack any grounds to contest it.
- Path B: One or both of you are not on board with what the prenup says and want to fight it based on a legitimate reason.
If you are going with Path A, then you have smooth sailing ahead. You and your partner will abide by the terms you agreed upon in your agreement and you will have your assets, alimony, and other matters sorted out according to what you previously agreed to in the contract.
If you are going down Path B, then you will have to either negotiate and try to settle any prenup issues with your partner outside of court or bring the issue to court to have a judge decide. For example, let’s say John and Sarah have a prenup that says John doesn’t have to pay Sarah alimony. At the time of divorce, Sarah wants alimony, so she decides to “fight” the prenup. She wants to now claim that it’s unreasonable, unconscionable, and/or she signed it under duress, etc. (Whatever she argues to get the clause or prenup thrown out will depend on what the laws of the state are). Keep in mind, you can’t just fight a prenup for no reason. There needs to be a valid argument to undermine the validity or enforceability of the contract.
So now, there are two options for John. Option 1: He can try to negotiate with Sarah and her lawyers to avoid going to court (perhaps paying her a lump sum or giving her more assets in the property division). Or Option 2: He can let her take her claim to court to let a judge decide. Option 2 tends to be more tedious, stressful, expensive, and lengthy. As you can imagine, filing a claim to enforce a prenup (or get it thrown out) in divorce court is no walk in the park. And it can rack up additional legal fees from the lawyers trying to fight the prenup (or protect it).
How common is it for prenups to be thrown out?
Prenups being thrown out is not super common. Courts typically lean towards upholding prenups due to several reasons: prenups serve individuals rights to contract and self-determine asset division, and they also lessen the burden on court resources by preemptively deciding financial matters (less time the judge has to take on your case if you have a prenup). As long as you followed the proper steps to get a valid and enforceable prenup in your state, then you should have no problem getting your prenup enforced!
How are assets divided in a divorce with a prenup?
Let’s use an example to demonstrate. Let’s say you have a prenup that says:
- John gets to keep his house, the boat, and the car as his Separate Property,
- Sarah gets to keep her condo, jewelry collection, and art collection as her Separate Property, and
- Their marital home is to be deemed Marital Property, to be divided according to state default law.
If the prenup is enforceable, then John and Sarah will each keep their Separate Property. Then, the only thing up for division is the marital home because it is considered Marital Property. That means the default laws of the state they are getting a divorce in will dictate how the home is split up. Whether it’s liquidated and the proceeds are split, or one person takes the house and offsets the value with a lump sum payment to the other person, it depends. And whether its 50/50 or some other combination of split will also depend on state laws and the situation.
Remember, there are two property division frameworks in the U.S.: community property and equitable distribution. If you live in a community property state, this home will be split 50/50. If you live in an equitable distribution state, it means the home will be split “equitably” which may not necessarily be 50/50, depending on the circumstances and the state laws.
Do prenups automatically make your assets 50/50?
No– having a prenup does not automatically mean you need to split your assets 50/50. Your prenup is what you want to make of it, as long as certain rules are followed (again, the rules are dictated by state). Whether that’s keeping all of your assets that you bring into the marriage separate or splitting assets you earned during the marriage according to each person’s contributions, you can do what you and your partner believe to be fair. A court is not going to throw out a prenup just because it is not 50/50.
Do prenups ever expire?
Okay, so what if you’re married for like 50 years. Will your prenup still be “legit” in 50 years? Yes, assuming two things are true: (1) Your prenup was made validly and enforceably and (2) Robots haven’t taken over and outlawed prenups. Jokes aside, the answer is no, prenups don’t expire…unless you want yours to. You can actually add in an expiration clause (more often called a sunset clause) which basically “sunsets” the prenup after a certain amount of years married. This means if you get divorced after the expiration date, you will get divorced according to the state laws where you live.
If you sign a prenup and get a divorce your prenup will control certain aspects of your divorce
The bottom line is that if you have a prenup and then get a divorce, as long as you created your prenup according to state laws, the prenup will control those aspects of the divorce that you included in the prenup (i.e., property division, attorney’s fees, alimony, and whatever other terms you included). You will still need to work out other issues in the divorce, such as child custody and support which cannot be determined in a prenup. However, the prenup will still speed things up a bit in the divorce process (saving you time, money, and stress). So go get that prenup!
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]
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