Some people come to us and say, “I don’t need a prenup because my state’s divorce law protects me.” Or “Prenups almost ALWAYS get thrown out; what’s the point?” But both of these two things (plus a few others) require more context and aren’t necessarily 100% true. It’s like a game of telephone- people hear stories and read articles, and by the end of the game, they’ve come up with a completely inaccurate conclusion about prenups. So the question remains: Are prenups useless? This article aims to debunk common misunderstandings about prenups and provide valuable insights into their usefulness.
What is a prenup?
Before we dive into the different misunderstandings surrounding prenups, let’s get a quick lesson on what a prenup actually is. A prenup (a.k.a. prenuptial agreement) is a contract between two future spouses that outlines how their assets will be divided in case of a divorce, among other topics like debt, alimony, and much more. A prenup MUST be signed before the wedding and becomes effective upon the actualization of the marriage.
Misunderstanding #1: I don’t need a prenup because my state laws protect me.
While this could technically be true, we think most people misunderstand the law here. What we hear most often is, “In my state, the things I want to keep as separate property are already kept separate by default law.” While this may be true on its face, what people DON’T understand is that MOST of the time, there are exceptions to that blanket rule.
Let’s look at an example of how this might go down in real life.
Let’s say John wants to keep his house separate property. The house is paid in full, and he owned it prior to marriage. In his state, this is technically considered separate property by default if it was owned prior to marriage (with some exceptions). John gets a divorce in his state (which is an equitable distribution state) and does not have a prenup because he thought state law protected him. He was WRONG! Turns out, the court decided to split up the house, even though it was purchased before the marriage. Why? It could be any number of reasons: commingling or equitable distribution factors like spousal contribution and length of marriage. John was sorely mistaken here, and if he had had a prenup, he likely would’ve been able to keep his house separate by listing it as separate property.
Misunderstanding #2: Prenups are thrown out *MOST OF THE TIME*
This is just not true. There is no data that exists to say the number of prenups that are thrown out each year–it’s purely anecdotal. Meaning if you have heard of one person getting their prenup thrown out, it may lead you to believe that MOST prenups are thrown out, but again, that’s not necessarily true. Now, what is true is that prenups CAN be thrown out, but it’s not the default. Many states encourage prenups and actually want to uphold contracts that were made validly and are enforceable.
What can get your prenup thrown out? Not following what the law says. For example, if your state mandates that your prenup be witnessed and notarized, and you DON’T do that, it can be thrown out. If the prenup is egregiously unfair, it may be thrown out.
As a practical matter, getting a prenup thrown out is expensive and time-consuming. Prenups are only thrown out if one spouse contests them. To contest a prenup, you have to file a complaint. To file a complaint, you have to pay attorney’s fees to your divorce lawyer. You have to spend time battling out a prenup.
The bottom line? It’s not easy to contest your prenup. Even if you do contest it, it’s not a GUARANTEE that the judge will agree with the person trying to get it thrown out.
Misunderstanding #3: Prenups are only for the wealthy.
One of the biggest misunderstandings about prenups is that they are only for the wealthy. People often have this belief that prenups are only for the wealthy, thanks to Hollywood’s negative portrayal of prenups. While it is true that wealthy people often get prenups, anyone can benefit from having one. In fact, people with LESS money than their partner can heavily benefit from a prenup. How? Well, people with much less money than their partner can make sure they are provided for in the event of a divorce. This isn’t to say that they should take ALL of their partner’s money, but it should be a balancing act of both spouses’ interests.
For example, let’s say Timmy and Tina are getting married. Timmy is very wealthy, with a significant inheritance he expects to receive one day from his Grandfather. Tina doesn’t have much and plans to be a stay-at-home mom. Timmy’s main goal with a prenup is protecting his future inheritance, while Tina wants to make sure she is provided for in the event of a divorce. How can they balance these interests? Well, Tina can ask for an equalization clause in the prenup which requires Timmy to pay her, say, $2 million dollars in a lump sum payment upon divorce. At the same time, Timmy can make sure he keeps his Grandfather’s inheritance separate (a mansion in Calabasas, plus tons of stock in a certain company). It’s a win-win, and neither person feels slighted.
Misunderstanding #4: Prenups are only necessary if you’re planning on getting divorced
Another common myth is that prenups are only necessary if you’re planning on getting divorced. While it’s true that a prenup is designed to protect assets in case of a divorce, it can also be used to lay rules down for the marriage itself. For example, a prenup can outline whether or not you will use a joint bank account or separate accounts, how much money should be withdrawn/deposited into the said bank account, how taxes will be filed, certain insurance requirements, infidelity clauses, and more.
Not only are there tons of practical clauses that lay out requirements for the marriage in a prenup, but prenups also align expectations for the marriage. By adding in all of these marital clauses, the spouses are able to get on the same page with each other and start the marriage off on the right foot.
Misunderstanding #5: Prenups ruin the romance
Many people believe that prenups ruin the romance of a relationship. You know what else ruins romance? A nasty divorce! Plus, with nearly 50% of marriages ending in divorce, it’s just logical! But not only that, a prenup can actually strengthen a relationship by promoting open communication about finances and life goals. Talking about money can be uncomfortable, but it’s essential for a healthy relationship. The bottom line is that if you find logic and reason attractive, then you may actually find prenups to be romantic!
Misunderstanding #6: I don’t have any assets, so I don’t need a prenup.
This is a big one for people. “Well, I don’t have any money to my name; why would I get a prenup?” There are many reasons you might still want/need a prenup even if you don’t have money now:
- Prenups can still protect FUTURE assets, so even if you don’t have money now, you probably will in the future.
- You can protect yourself (or your spouse) against debt. Do you really want to take on debt you didn’t borrow yourself in the event of a divorce?
- You want to protect a future inheritance and/or gifts that you don’t have yet.
- You have no money, but your spouse has a lot of money, and you want to make sure you are provided for in the event of a divorce.
- You have pets and want to make sure pet custody is handled in the way you want it to be in a divorce.
- You need health insurance/life insurance and want to ensure your spouse maintains those insurances on your behalf during/after the marriage.
- You want to streamline divorce by having most divorce issues worked out in the prenup (thus, spending less time in a courtroom if you ever get divorced).
- And much more!
Frequently Asked Questions (FAQs) about prenups
Q: Can a prenup be challenged in court?
A: Yes, a prenup can be challenged in court, but a well-drafted prenup, compliant with state law, is more likely to be enforced.
Q: How do I talk to my partner about getting a prenup?
A: Try to explain your intentions openly, explain how the prenup can benefit both of you and always keep the conversation calm. Make sure you’re open to hearing their concerns. At the end of the day, if they refuse to sign a prenup, you cannot force them to sign one.
Q: Can a prenup include provisions for spousal support?
A: It depends on your state. Most states say yes, a prenup can include provisions for spousal support. Some states, like New Mexico, do not allow you to include provisions for spousal support in your prenup.
Q: Do both parties need separate attorneys to get a prenup?
A: It depends on your state. But, most states do not require attorneys for a valid prenup.
The Bottom Line
The bottom line is that prenups are not useless, despite these popular misunderstandings. They can provide valuable protection and certainty for couples who are getting married.
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]