Prenuptial Agreement Clauses
Check out a list of (some) of HelloPrenup’s Clauses
This list should help you think about what you would like in your prenuptial agreement, and may help generate some talking points with your fiancé before you get started.
Also known as the “Recitals” section of a contract, the background section will require some basic information that will be used on the first page or so of your prenuptial agreement. This section is usually referred to as the “Recitals” or “Preamble” section of a prenup, and is meant to outline basic information about the parties, and their intentions for this agreement. You will be asked questions that include your full name, date of birth, address, your intentions behind entering into this prenuptial agreement, whether or not you are employed and if employed where you are employed, as well as your general health.
In the property section, we will ask questions about how you would like property to be defined in your prenuptial agreement. Defining property will delineate what property should remain as just yours, “Separate Property,” and what property that you would like to become “Marital Property.”
Marital property is property that will be considered both yours and your future spouse’s, and in the event of a divorce, would likely be divided in accordance of the law of the state where you get divorced, or according to the terms of your prenup. Marital property typically refers to property acquired during the course of a marriage, or property that is to be considered property of the marriage. Separate property is any property, real or personal, acquired before marriage, or by gift or inheritance during marriage, or property that is intended to remain that of one of the parties. This is where your prenup comes into play- by use of a prenuptial agreement, you can specify what property you would like to remain separate, even though under state law it may otherwise be considered marital.
Keep in mind, that property is more than just stuff. We aren’t necessarily talking about things like the coffee table that hold little or very minimal value. Property typically refers to bank accounts, investment accounts, trusts, retirement accounts, intellectual property, among other things, like physical property and real estate.
Separate Property Recapture of Real Estate
A Separate Property Recapture of Real Estate is a clause that states that if you and your future spouse contribute money to a joint venture in real estate during your marriage (purchase of real estate, home renovations, etc) above a certain dollar amount, then that lump sum amount that you individually contributed (above the threshold stated) will be “recaptured” and returned as Separate Property to the person who made the contribution. You and your fiancé decide what the threshold amount should be. Anything above that threshold will be considered that party’s Separate Property.
This is helpful if you plan to buy a house or renovate a house, and either you or your fiancé will be supplying the down payment, or paying to get that kitchen re-done.
Current and Future Income and Debt
In this section, you will decide how income and debt will be resolved. How will pre-marital and post-marital debt be handled between you and your future spouse?
On the topic of future income, this section allows you and your spouse to agree on plans for spousal support. The topic of alimony or spousal support is a loaded one. See the next section titled “Spousal Support” for more info, check out our state specific information on the state dropdown, or check out our numerous blogs on the subject!
In this section, you and your spouse will decide whether either of you will be obligated to pay the other financial support in the event of a divorce. Please note, this does not have to do with child support, because child support cannot be addressed in a prenuptial agreement. A Prenuptial Agreement allows you and your future spouse to decide whether you would like state law to determine if support is awarded after a divorce, or if you and your future spouse would like to forfeit your rights to support in the future.
“Support” aka “Spousal Support” aka “Alimony” aka “Spousal Maintenance” is defined differently by each state, but is always a payment from one spouse to the other for a fixed period of time.
Alimony is generally awarded in cases where one party is financially dependent on the other. For example, alimony may be award if spouses have highly different incomes or if one spouse has or plans to take time off from work to raise children.
In certain states like California, the party waiving their rights to an attorney must have an attorney at the time the Prenuptial Agreement is signed in order for a spousal support waiver to be enforceable. So, if you are creating a prenup in California, and you or your spouse want to waive future spousal support, make sure to obtain legal counsel prior to execution of your agreement.
Gifts and Inheritance
What is considered a gift or inheritance?
An inheritance is property (which can be physical property or money) left to you upon the passing of a family member, your parents, or someone who has passed.
A gift typically refers to any property or money that is given to you or your future spouse during the course of your marriage. This could include a valuable piece of art, or a check for $10,000, among many other things. Maybe Uncle Joe gives you a $20,000 check every Christmas just because he’s rich and he’s generous. That would be considered a gift. Now that you are married, should that moolah be considered Separate Property or Marital Property?
Debts and Liabilities
The Debts and Liabilities section of your Prenuptial Agreement is designed to memorialize how you and your future spouse will handle debt. This includes debt incurred prior to marriage, or debt incurred during the marriage.
If your honey has $10,000 in credit card debt, do you want to be partly responsible for it? What about if that honey racks up another $10,000 in debt during your marriage buying god-knows-what? Should you be responsible for the debt then because it was incurred during your marriage?
This is a section that should lead to some serious conversations about debt, including how you will handle any debt you do have, but also how you will share in expenses once you are married. Beyond the prenuptial agreement, you should discuss if you have children, how will you handle buying all those diapers? How will you pay for family vacations? Start the debt and budgeting conversation now. Check out our Gettin’ Hitched Checklist for more ideas on what you should be discussing prior to marriage.
Your HelloPrenup Prenuptial Agreement will include a breach paragraph. Breach means, in layman’s terms, violation. Obviously, the two of you are entering into this agreement because you want it to be enforced. The language of this provision is intended to let any party who attempts to violate it know that there are consequences.
A breach paragraph states that it is intended this Prenuptial Agreement be followed, and if either of you breach the agreement, or die having breached the Agreement or owing any outstanding obligations to the other, then the surviving party will have a right to seek payment and full satisfaction of said obligation from the estate of the other. The breaching party (or their estate) will be liable for any attorney’s fees, costs and expenses incurred by the other party in attempting to enforce the provisions of this Agreement.
Entire Agreement and Amendments
Period of Marriage
Your HelloPrenup Prenuptial Agreement will include a section titled “Period of Marriage” This section states that for purposes of this Agreement, the period of marriage means from the date of marriage until the filing of a divorce, annulment, separate support, or dissolution of any type.
Keep it Confidential Clause
You will have the option of adding a Confidentiality Clause to your HelloPrenup agreement. A Confidentiality Clause will include provisions that ensure your future spouse will not disseminate private information to the public. This is helpful if you own a family business, if trusts or trust amounts will be disclosed in this Prenuptial Agreement due to your assets, if you are a high ranking executive with access to private company information, or if you just want an extra layer of privacy included in this document. Of course, ultimately, the validity of this clause would be up to a judge who would determine if your spouse’s actions have violated the intent of this clause.
Want to add a Non-Compete Clause? No problem. A non-compete clause is a great add-on, in addition to the confidentiality clause if you are a business owner, have an ownership interest in a family business or other business, or if your family owns a business, and access to proprietary or confidential information may be granted to your spouse. Of course, ultimately, the validity of this clause would be up to a judge who would determine if your spouse’s actions have violated the intent of this clause.
Social Image Clause
The Social Image Clause is another optional HelloPrenup clause, and pertains to how your future spouse must treat you on social media. As you probably know, this is no laughing matter these days! A social image clause is a great add-on that ensures your future spouse cannot post humiliating or disrespectful remarks, photos, videos (and the list goes on…) if your relationship were to fail. You can set an amount for damages if your future spouse were to post these things. Of course, ultimately, the validity of this clause would be up to a judge who would determine if your spouse’s social media posts violated this clause.
Sunset Clauses are rising in popularity because they give a prenup more flexibility. A Sunset Clause dissolves your Prenuptial Agreement automatically at a certain wedding anniversary or specified date. Depending on your age, how long you have known each other, and your respective incomes, you may consider a shorter or longer term that you would like your prenup to remain in force and effect. This clause will include language identifying a date in the future when, if you and your fiancée are still married, your prenup will expire.
Infidelity Clauses or more commonly called “cheating clauses,” have become more popular in recent years. An Infidelity Clause entitles one spouse to financial gain in the case that their partner commits infidelity.
Lump Sum Payments
HelloPrenup offers a “Lump Sum Payment” clause, which is an option that allows you and your future spouse to meet on neutral ground if one has significantly more assets, or in the case that one spouse decides to give up their career for a few years to raise the kiddos. Lump sum payments offer a sort of alternative financial arrangement for couples who may want to even out the financial footing. To even the playing field, you may consider a lump sum payment if you are to be married a certain number of years, with payments taking place at certain milestones. The actual payout would occur upon divorce. Sign up and check out our Lump Sum Payment section to learn more about this option.
We know it is unjust and appalling, but in most states furry children are still technically considered “property” under the law. It is helpful to include the custody of your current or future pets in a Prenuptial Agreement because should you split in the future, it is unlikely that a Court will participate in enforcing or supervising a “shared” parenting arrangement for your fluff-child. Rather, most courts simply assign the pet (property) to one party or the other. YIKES!
In order to determine which of you is better suited to take ownership of the pets in a divorce, you need to keep in mind the time it takes to care for a furry child, including walks, play dates, and general availability (ie if you travel 7 days per week, you are probably not going to be the best pet parent). You must also consider the cost associated with caring for Fluffy. What do vet bills cost? What about haircuts? Does Fluffster have any serious medical issues?
Alternatively, are you both well equipped to care for Fluffy McFlufster financially and emotionally? What if you share custody, and split all medical costs? There’s an option for that!
A death clause is a helpful addition to a Prenuptial Agreement if you would like to ensure your Prenuptial Agreement works hand-in-hand with any other estate planning documents. A death clause typically states that in the event you or your future spouse pass away while married, the terms of this Prenuptial Agreement will remain in effect, as though you were alive (i.e. Separate Property will remain Separate). By adding this clause you and your future spouse are waiving all rights to each other’s estate that you would normally have as a surviving spouse. If you or your future spouse want to bequeath (legal lingo for ‘give’) a certain asset to the surviving spouse in the estate document, and that asset is otherwise identified in the prenup, then you can do that. This is where the estate planning comes in.
Our HelloPrenup death clause also states that if one of you passes away while you and your spouse are still married (and no separation or divorce action is pending), all marital property and liabilities from that marital property will be passed to the surviving spouse. In addition, all Separate Property, and liabilities associated with the deceased spouse’s Separate Property, will belong to the estate of the deceased. As stated above, this clause states that neither of you is precluded from receiving property specifically bequeathed to them in the other’s last will and testament.
Alternative Dispute Resolution Clause
An Alternative Dispute Resolution clause is a great addition to a Prenuptial Agreement if you despise the “L” word- Litigation, that is. If you choose to add an “ADR” section, it will address that it is your intention to have peaceful resolution of any disputes, should your marriage end in divorce and that you and your fiancé agree to participate in Alternative Dispute Resolution such as mediation and will share costs of this process equally before filing any action in any court (in a lot more detail, of course).
Health Insurance and Prenups
HelloPrenup’s optional health insurance clause allows you and your future spouse to decide that if one of you is providing health and/or dental insurance to the family at the time of the divorce, that person will need to continue providing health insurance, so long as the insurance plan allows for this.
Life Insurance and Prenups
HelloPrenup’s optional life insurance clause allows you and your future spouse to decide whether you will maintain a life insurance policy or policies for the benefit of the other, and how much that benefit should be.
Primary Residence Clause
HelloPrenup’s optional primary residence clause allows you and your future spouse to decide whether one of you will be permitted to remain in the marital home in the event of a divorce. This is a helpful clause to think about if you plan to have children together in the future.
Engagement and Wedding Rings
What happens to your engagement and/or wedding rings in the event of a split? HelloPrenup’s optional clause addresses this issue, and lets you decide now, what should happen in the event you split down the road.
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