Considering drafting a prenuptial agreement? Ignore everything you’ve “learned” from watching TV and movies. Many misconceptions in the media have caused a negative stigma surrounding prenups. Much of what is portrayed in various forms of media is not how a prenup actually works.
If you and your partner are curious about how a prenup really works, this guide is for you. In this prenup overview, we’ll dive into the basics you need to know about how prenups work. This includes why people (and you) should consider a prenup, who should consider prenups, what they entail, and how they’re implemented in the event of a divorce.
Keep reading to find a one-stop shop for all of your prenup questions!
Why People Consider Prenups
The purpose of a prenup is to create a written agreement that helps prevent divorce-related headaches. The process of a divorce is already grueling, the last thing you need is to have to worry about the division of assets. By creating a prenuptial agreement before you get married, you help keep things as stress-free as possible. A prenup is a “backup plan” and is only implemented if you and your partner divorce.
A prenup allows you and your partner to take your financial future into your own hands. Without a prenup, the courts defer to state law to divide marital assets during divorce. Many couples choose to get a prenup so they can have “a say” in their own life! No matter what state you reside in, a prenuptial agreement and the clauses included will always override state law. That means the rules and agreements that you and your partner have outlined in the prenup, before marriage, will be abided by, no matter what.
If you and your partner are considering a prenup, ignore the stigmas! While there are lots of negative beliefs surrounding prenups, they’re often rooted in misconceptions and uninformed beliefs. A prenup does not suggest you and your partner are not going to make it! It’s simply an insurance policy to help you navigate divorce IF you don’t.
Who Should Consider a Prenup
Often, when people think about prenups, they think of celebrities and high-profile people getting prenups. However, it is a misconception that prenuptial agreements are only for wealthy people. People of any monetary status can and should consider prenups. Many average couples choose to have prenuptial agreements as “insurance” policies, in the event of a divorce.
Especially for younger generations, prenups are increasing in popularity. According to a study by the American Association of Matrimonial Lawyers, 51% of attorneys have said they’ve seen an increase in “millenial-age couples” requesting prenup agreements.
Anyone should consider a prenup to protect the assets of both people in a marriage. Some specific circumstances also may encourage a couple to consider a prenup. For example,
- A couple who wants to pass separate assets to children from a past marriage
- Couples with vastly different financial situations
- Couples entering a marriage with lots of debt (student loans, credit card debt, etc)
- Any couple who wants to avoid costly legal battles in the event of a divorce
- Couples where one person has a family business
- You want control over your own future (not in the hands of the courts)
- Expected family inheritances
What a Prenup Entails
A prenup agreement requires that both partners disclose all of their assets before the marriage. This process involves a financial disclosure, which provides insight into your assets, debt, inheritances, and more before you get married. This requires honesty from both parties. The laws surrounding each state may be different, so you’ll want to be sure you check into your state laws.
If you choose to use HelloPrenup to write an easy prenup, your process will simple and easy. After creating a HelloPrenup account and inviting your partner, you will both fill out an easy questionnaire. The purpose of these questions is to help you determine what you’d like included in your prenup. This will go through important topics that should be included. After you and your partner have negotiated the terms of the prenup, it will be available to print. It’s that easy! To learn more about how the process works, click here.
How Prenup Implementation Works
Though you hope to never have to use your prenup, it’s important to understand how the process works. As you and your partner draft your prenuptial agreement, it is normal to be curious about how implementation works. Don’t feel bad about wondering! Your curiosity in no way suggests that you and your partner are bound to divorce.
Each state has unique laws about the enforcement of prenups. Unless there is reason to believe the prenup is valid, most courts will enforce the clauses written in a valid prenuptial agreement. That’s why it is important to ensure you’re following your state laws when you draft your prenup, to begin with. This will ensure it’s valid if you ever need to use it.
If one party is not abiding by the valid prenup, it may be brought to court. This gives the courts the power to enforce the prenuptial agreement. Though you would think both partners would willingly proceed with what was written, divorces can get tricky. Often, people get bitter and problems arise. That’s why the court will back the enforcement of a prenuptial agreement.
Prenups offer couples a chance to customize their written prenup for their specific needs. As such, no two prenups will be exactly the same. It is up to you and your partner to decide which clauses should be included. Some common prenup clauses include the division of debts and liabilities, spousal support in the event of a divorce, gifts and inheritances, social media clauses, and more. While some of these may be self-explanatory, others may have you wondering: “what’s that?”
Interesting Prenup Clauses to Consider
As you navigate the prenup process, it may be helpful to understand some of the following types of clauses:
- Sunset Clauses: Many couples today choose to add sunset clauses to their prenups. It allows more flexibility as it determines a date at which the prenup will become no longer valid. How long your prenup is valid is entirely up to you and your partner. Some people may do 5 years, while others may do 50!
- Cheating Clauses: You and your partner may choose to add an infidelity clause. This means that if one partner is unfaithful, the other may receive financial compensation.
- Pet Clauses: For couples who have furry friends together, deciding who gets the pet during a divorce can be difficult. If you foresee this being a problem, you may wish to add a pet clause to the prenup in advance. This will outline who the pet will live with, and who pays for expenses, visitation, and other pet-care rules.
- Social Media Clauses: A social image or social media clause refers to how each partner treats one another on social media. This can protect you from disrespectful or vulgar posts in the event of a divorce. A prenuptial agreement can have a clause that states you’re entitled to compensation if your partner humiliates you on social media.
These interesting prenuptial clauses are just a few of the many ways you can customize your prenup to work for you. Perhaps you never even thought of these things until now! Prenups are all about preparing for the (possibilities) of the future.
Now, you know the basics of a prenup! While there is so much to learn, you’re now equipped with the fundamentals. You and your partner can learn more about prenuptial agreements through the various resources at HelloPrenup.
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 [email protected].