Back to Basics: Common Prenuptial Agreement Provisions

Sep 18, 2019 | Prenuptial Agreements

“If you ain’t no punk, holla we want prenup, we want prenup, yeahhh!”

Sure, these lyrics would go on to help Kanye West win the Grammy for “Best Solo Rap Performance” in his mid-aughts hit, “Gold Digger.” But just what is a prenup, and why were celebrities like Kanye West and Jamie Foxx advocating for them?

While some of the more bizarre celebrity prenuptial agreements have drawn attention from the masses, we’re here to assure you that prenups are advisable for everybody these days, not just the rich and famous. Traditionally, prenups were commonly thought of as a way for wealthy couples to protect their finances. However, once we delve into the makings of prenups a bit more, you’ll assuredly find that they are a logical, smart step for any couple.

Let’s first get back to basics, by looking into just what a prenup is: A prenup is a legal, written contract agreed upon by two people before they get married. This contract is made up of various clauses, often known as provisions, that lay out each individuals’ property rights, income, assets and debts, etc, and specify who will take ownership of each in the case of a divorce or death. Essentially, it protects each individuals’ assets. In order for a prenup to be created, both parties entering into the marriage must agree on all of the terms.

Without a prenup, property rights are left up to state law to determine what happens to property and/or debt acquired before or during a marriage. These laws can give one spouse the right to sell or give away property purchased during the marriage (marital or community property),  or could leave one spouse strapped with debt incurred during the marriage (or in some cases, incurred before the marriage!). Needless to say – without a prenup, there is a lot of room for a very messy, unhappy divorce. We don’t know about you, but we’ll take a hard pass on losing half of our savings to help pay off an ex’s mid-life crisis hot rod.

There are a lot of factors playing into why prenups have become more common for middle class, non-celebrity couples. In fact, CNBC recently reported that a whopping “62% of lawyers …have seen an increase in the total number of clients who are seeking prenups during the past three years.”

First and perhaps most obviously, divorce rates are higher than they have been in previous generations. In fact, they were highest in the 1990s, when millennials were growing up with divorcing parents. Those millennials are now adults, and do not want to repeat their parents’ mistakes. And, it appears that it is working- according to a 2018 TIME article, about 39% of marriages in the United States end in divorce. This is a sharp decrease from decades past.

Additionally, according to CNBC, the average 25-34 year old American has $42,000 in debt, not including home mortgages. This number is higher than ever before, making prenups increasingly essential for protecting yourself from your spouse’s debt. For couples with children from previous marriages, prenups can be essential for ensuring the spouses provide for one another, while still passing property unto their children. Clearly, prenups are a big stress reliever, helping couples sleep well at night knowing that no matter what the future holds for their marriage, their assets are protected.

To better understand prenups as a whole, you need to understand a few of the different provisions that can go into one. Like we said earlier, what can and cannot go into a prenup will vary based on a states’ laws. Let’s take a look at some of the provisions that can go into a prenup – from the truly logical to the truly bizarre.

Identification of Separate Property vs Martial Property

Perhaps the most obvious section of a prenup is the section that simply identifies how debt and assets will be categorized – separate property or marital property – at the time the marriage begins. Any property purchased, inherited, or gifted to one spouse can be identified as “separate property”, or can be considered “marital property” if you so choose. The key here is that the choice is up to you and your fiancé, and rather than leaving chance to state law, the power is in your hands!

Management of Accounts and Spending

In addition to determining how things will go in the case of a divorce, prenups can also include information about how finances will be managed throughout the marriage. For example, prenup provisions can outline who will pay which household bills or how any joint bank accounts will be managed, and what funds will be deposited by either partner, and when. On that note, provisions regarding lump sum ‘alimony’ payouts can also be written into a prenup. For example, Keith Urban and Nicole Kidman’s prenup supposedly outlines that Keith gets $600,000 annually for each year that the couple is together. However, the prenup also states that if Keith drinks excessively or uses any illegal narcotics, Nicole doesn’t have to shell out a penny.

Prenups and Children

No matter what state you are residing in, the one thing that a prenup cannot do is determine child support or dictate custody of children in the case of a divorce. Child custody and child support can never be contracted away in a prenuptial agreement. This is because courts generally view custody of children using the ‘best interest of the child’ standard to ensure the most beneficial custody arrangement for children on a case-by-case basis, rather than risk leaving a child’s welfare up to a prenup.

Related read: What You Can and Cannot Include in a Prenup

Lifestyle Clauses

Here’s where things can begin to get wild. Lifestyle clauses can lay out anything from the ideal behavior for each spouse to exhibit in the marriage, to any type of reward that spouse may get for complying. Most commonly, these ‘lifestyle clauses’ will outline how in-laws are interacted with (including how much!), how housekeeping chores are done, or an ideal weight range one partner should stay within. As you can see, prenups can truly spell out legal extremes that you never thought plausible to put in a contract. Believe it or not you can legally stipulate that if your partner’s weight gets above a certain number, they lose certain assets. Even a specific amount of money for every pound over their “target weight.” Truly, the sky’s the limit here, though the legality of lifestyle clauses do vary greatly between states. California, for example, does not enforce most lifestyle clauses, despite the fact that so many celebrity prenups are drafted under California law. However, many couples choose to include these provisions anyway- after all, a prenuptial agreement is in many ways an emotional document just as much as it is a legal one.

At the end of the day, the beautiful thing a prenup is that you have options- can tailor your prenup to suit you and your spouse’s own unique relationship, standards and expectations. No matter what provisions you choose to include, a prenup allows you to sleep well knowing that your assets are protected, and that if something does happen to your marriage, your divorce will be one that involves minimal fighting over property and finances.

Interested in a prenuptial agreement? Read more about how the HelloPrenup service can help.

You are writing your life story. Get on the same page with a prenup. For love that lasts a lifetime, preparation is key. Safeguard your shared tomorrows, starting today.
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