But let’s face it… no matter how you spin it, we live in a time of major opportunity in the digital age. Between shopping online and attending work meetings via Zoom or Facetime without ever leaving our couch, most of us end up spending most of our waking hours online. As time goes on, this digital trend is unlikely to slow down and even for those of us old enough to remember dial up internet, we must accept digital life is here to stay (*insert sound of AOL booting up here*).
This comes as no surprise, because after all, you are even drafting and negotiating your prenup online, right?
In addition to shopping, working, and drafting your prenup online, you can also own digital assets that only exist in the internet-sphere (not a word, but we just made it one). Our point? The internet isn’t going anywhere, and neither is the trend of including Bitcoin, cryptocurrency and other digital assets in prenups.
If you are in a serious relationship, or even if you’re still searching for The One, there is never a wrong time to think about how your current and future assets will fit into your romantic relationship. There is, however, a best time to think about it. The best time is in the discussion of your prenup before you tie the knot.
Bitcoin and Other Digital Assets
Bitcoin is a digital currency that has only been around since about 2009. Kanye probably didn’t even consider bitcoin in the infamous “We want prenup” line from his 2005 hit “Gold Digger”. That’s okay though, because you don’t have to know exactly what the future will hold when you draft your prenuptial agreement.
Even though Bitcoin didn’t exist before 2009, it fit into the definition of a digital asset when it did make its appearance. This is because the definition of a digital asset is broad, allowing for unknown advances in our techie world. Essentially, a digital asset is data stored online that has value. Examples of digital assets include:
- Cryptocurrencies (like Bitcoin)
- Domain names and websites
- Online businesses
This certainly isn’t an exhaustive list, and there are more complicated forms of digital asset ownership, but we’re focusing on how these assets fit into your prenup.
When Do Digital Assets Belong to You?
Some of us come to the marriage table having already made some really great financial decisions. If you got into the Bitcoin business early on, then this is probably you. Congratulations! Currently, one Bitcoin is equal to over $37,000, and you absolutely have a right to retain individual ownership of this wealth during your marriage and after.
Perhaps you decided to make an investment in Bitcoin or other digital assets during your marriage and the investment really paid off. The question of who owns what can get tricky if the marriage doesn’t work out.
If you don’t have a prenuptial agreement when you divorce, then the law of the state where you live will dictate who gets what. There are two ways that states handle the division of assets, digital or otherwise, when a married couple seeks a legal separation but does not have a prenuptial agreement.
A few states implement Community Law ownership of marital property. In these states you will generally have to equally divide assets obtained during your marriage. The other rule followed by the rest of the states is called Equitable Division. In these states, the spouse that acquired the assets during the course of a marriage will be entitled to that property after the marriage is over, but this isn’t as simple as it sounds- some states divide this property based on length of marriage, earning potential of the parties, and a whole host of other factors state law may put into play. This, my friends, is why a prenuptial agreement is important.
There are of course exceptions to the above theories, and it can get complicated quickly. For example, what if you used the funds you inherited from the great aunt you didn’t know you had to buy a chunk of Bitcoin because your spouse said it would be a good idea? Resolving these questions often requires a lot of time and money.
Protecting Your Digital Assets with A Prenup
Marriage can be wonderful, but divorce can be incredibly stressful. At the end of the day, it is healthier for everyone if you don’t have to debate over who gets what while also navigating difficult emotions.
Because the ownership of digital assets like Bitcoin can be convoluted, you should consider protecting these assets with a prenup. We don’t always make the most reasonable decisions in the heat of the moment, so planning in advance makes the divorce resolution easier to live with.
The preparation of a prenup can help in more ways than one. For example, a prenup can set out the expectations for the management of digital assets during the marriage. Some individuals are better at maintaining certain assets than others. Even in a happy marriage, clearly defining who is in charge of certain assets may save you some headache on a busy Monday.
We’ve discussed a few of the positives of entering into a prenuptial agreement with your fiancé, but there are more. Some additional incentives include:
- Saving money and time on legal fees during a divorce
- Protecting inheritance
- Protecting one another from each other’s debts
Prenups Are a Two-Way Street
It isn’t uncommon for one fiancé to bring up a prenuptial agreement to the other, only to find they’ve hurt their soon-to-be spouse’s feelings. This can be particularly painful when the pro-prenup fiancé is wealthier than the other. It may seem like one is accusing the other of being, as Kanye put it so eloquently, “a gold digger”. This is rarely the case, though.
There are plenty of reasons to entertain discussions of a prenup, even if you aren’t the one who made digital bank by buying into Bitcoin a decade ago. Firstly, it’s important to set your own expectations for a marriage. Understanding how a significant other is going to share their wealth is a key component of budgeting and planning.
You might even discover your significant other doesn’t hold the same values as you. While this would be a major heartbreak, it’s always better to learn these lessons sooner rather than later. Most likely, you will establish clear boundaries and expectations that will lead to a richer (pun intended) relationship not focused on nickel-and-diming each another.
How to Prepare Your Prenup
So great, you’ve decided a prenup is the best way to manage Bitcoin in your marriage! What’s next? With Bitcoin and all other digital assets, you should do a thorough inventory to determine what exactly it is that you each own. Sometimes this is as easy as creating a spreadsheet, but other times it is more difficult. As always, all of your assets should be included on your Financial Schedule.
There may be instances during this inventory process when you are confused about what your fiancé owns. Maybe you are even confused about what you own, because let’s face it, tech rapidly evolves and staying on top of the changes can be a full-time job. If you find yourself in this pickle, consider hiring experts to help you navigate the problems. You could consult the following:
- Tax professionals
- Cryptocurrency experts
- Therapists (seriously!)
Although it may seem like a lot of effort and expense to bring outside help into the preparation of your prenuptial agreement, it is easier and cheaper than a lengthy and complicated divorce. The good news is, HelloPrenup allows couples to create their prenuptial agreement at a much lower cost than traditional methods- so, in the end you’ll be spending less than you otherwise would anyway.
Keep Detailed Records of Digital Assets
Once you have the prenup, your job is not done. As discussed already, the nature of digital assets is fluid and, in all likelihood, will change overtime. Your digital assets may change in form. For example, an online bookstore may morph into a global, multi-billion dollar empire (looking at you Jeff Bezos). Or your Bitcoin investment may dramatically fluctuate in value. Some people even lose track of their Bitcoin or find Bitcoin they didn’t know they had.
Because digital assets have a tendency to change in shape and value, it is particularly important that you keep track of them during your marriage. Of course, the prenup will ultimately tell the judge how your assets were intended to be divided in a divorce, but it will save time and money to know exactly what the assets are before calling a divorce attorney. And, as stated before, it is very important to make sure you have included these assets on your financial schedule in your prenup.
Renegotiating the Prenup or Consider a Postnup
WTF, now I need a postnup?! Calm down. Maybe.
One issue to touch on before we wrap up is that it’s almost never too late to change course and make a plan for how your digital assets will be divided if you and your spouse ultimately decide you won’t find happiness together.
Perhaps you already have a prenup but then your financial circumstances dramatically change. Bitcoin is a perfect example of how a digital asset can take you from rags to riches in just a few short years. A prenuptial agreement is a contract, and contracts are routinely re-negotiated. As long as both parties are in agreement, you can make changes to the prenup. In some cases, re-negotiating your prenup followed up with a postnup may be recommended based on your state’s laws- but you’ll need to contact an prenup or postnup attorney in your state about that.
Postnuptial agreements are like prenuptial agreements, but they are created (you guessed it) after the exchange of wedding vows. Sometimes a couple simply doesn’t get around to finalizing the terms of their prenup before the marriage license is signed. Sometimes, they didn’t think a prenup was necessary but then change their minds and decide to clarify ownership of their marital property.
Communicate, Communicate, Communicate!
The best tool in a marriage is communication and perhaps it is most important when the issues feel uncomfortable. Talking about money can be difficult because everyone was raised to handle money differently. Most people think of divorce when they hear “prenup” but they shouldn’t. They should associate prenups with good communication, which is a sign of a happy marriage.
A prenup discussion doesn’t have be tense and awkward if you approach it from a place of setting intentions, boundaries, and teamwork goals. Talk early and talk often, and know you can always make adjustments to your prenup.
Anxious to get started on your prenup? Get started at HelloPrenup.com or send us a note with any questions on how to get started. We want you to feel super good about your prenup, and ya know, protecting your digital assets, too.
XO, HP ????
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].