Getting married soon? If so, you may be considering a prenuptial agreement (a.k.a. prenup). And for a good reason! A prenup doesn’t have to be a scary, taboo topic that signifies a failing relationship. A prenup works like insurance; it’s only used if the “bad thing” happens. Keep reading to learn what a prenup is, how it works, who needs one, and a few Q&A.
What is a prenup?
A prenup is a legally binding contract between two people who are about to get married. A prenup can cover topics like property division and alimony in the event of a divorce and sometimes death. Prenups are governed by the family laws of each state, and they can vary from state to state.
How does a prenup work?
A prenup is a document you hope never to have to use. Kind of like car insurance; you hope you never get into a car accident and need to enforce your car insurance policy…well, the same goes for a prenup. (That’s why we like to call it “marriage insurance,” although it is not actually a type of insurance).
A prenup is essentially a way for you to decide on certain issues in the event of a divorce, usually financial in nature. If you ever do get a divorce, you can point to your prenup and say, “well, thankfully, we don’t need to argue over these topics in court because they’re already decided for us.” By predetermining certain issues ahead of a divorce, it saves you money on attorney’s fees and time spent in the courtroom and attorney’s office.
However, if your spouse refuses to oblige by the terms or claims the prenup is invalid, then you will need to ask the court to enforce the prenup. The court will then look at your prenup and determine if it is valid and enforceable. If the court does enforce it, then your ex-spouse must oblige by the terms.
Who needs a prenup?
Prenups are for everyone, not just for the wealthy! Usually, you hear all about the rich and famous getting extravagant prenups to protect their millions of dollars. And, while that’s very useful for them, it is also useful for those of us without a huge fortune. For example, if you own a home, expect an inheritance, or have a retirement fund, you should consider a prenup. Even if you don’t have those things, but you will in the future, you should be considering a prenup, as well.
Let’s use an example of a non-rich and non-famous couple who could benefit from a prenup. Amanda and Peter are set to get married next year. Amanda is a high school teacher but plans to get a law degree after the wedding so she can fulfill her dream of becoming a lawyer. Peter is a barista/writer who takes in a modest income. Peter is worried that if Amanda takes out loans during the marriage, he will be on the hook for some of those, and he is right! Peter could potentially be on the hook for a portion of Amanda’s law school debt, which could wrack up to hundreds of thousands of dollars. Enter: the prenup! A prenup can outline that Amanda’s debt is her own and vice versa. This will create a layer of protection for Peter and some much-needed peace of mind. They get the prenup, determine that each party’s debt is their own, and live happily ever after!
Now that you know how a prenup works on a basic level, let’s dive into some questions that will help you understand the inner workings of a prenup even better.
What is an invalid prenup?
Let’s talk about invalid prenuptial agreements. An invalid prenup is typically a prenup that cannot be enforced, meaning it’s unusable. If your prenup is invalid, you will have to go through the divorce process as if you never got the prenup. What is considered an invalid prenup? The answer to this question can vary from state to state. If you remember, we discussed above that the laws governing prenups are your state’s family laws. There are some general requirements that most states require for a valid prenup, such as it must be in writing and signed, and it must not be created under some type of force, like duress, coercion, fraud, etc. Some states require the contract to be notarized. Some states have unique requirements, like Cali. In California, there is a 7-day rule which requires seven days between presenting the final prenup and the signing of the contract. There are a plethora of ways a prenup can be considered invalid.
This depends on your state law. Some states do not require a lawyer for a prenup. Others require a lawyer in certain situations. Some states consider having a lawyer as one factor that supports a claim for a valid prenup.
Let’s look at California as an example. California generally does not require a lawyer to have a valid prenup. However, if the parties are altering spousal support (i.e., alimony) in any way, then a lawyer is required for a valid prenup.
Another important piece of information to know is that you cannot hire one attorney to represent both of you; that would be considered a conflict of interest. An attorney cannot be an effective proponent for your needs and your partner’s needs at the same time. So, if you are choosing to get a lawyer, it’s best you each get your own.
What should I put in a prenup?
This is personal to you, as prenups should be customized to your life, needs, and goals. Generally, prenups cover financial topics but may also cover non-financial topics like confidentiality, pets, and infidelity (depending on your state).
Let’s dig into the financial topics you can cover. How do you want property that you owned before the marriage to be treated? How do you want property acquired during the marriage to be treated? What about earned income? Appreciation? Are you okay with paying alimony (or do you want to receive it)? Inheritances? Gifts? These are all the questions, and many more, that can be answered and outlined in a prenup.
However, there are, of course, limitations. For example, nearly all states do not allow you to contract around child custody and child support. Children have needs and wants that cannot be predetermined by their parents, potentially years before a divorce. Along the same vein are unconscionable terms. You cannot include unconscionable terms in your prenup. What is unconscionable can vary from state to state, but the overarching theme of it is something that is egregiously unfair. Like, you shouldn’t leave one person destitute and needing public assistance. Terms regarding child custody and support and unconscionable terms will typically be thrown out, and it potentially puts the entire contract at risk of being invalidated.
Now that you know how a prenup works let’s talk about how HelloPrenup works. For starters, it’s only $599 PER COUPLE. One partner will sign up for HelloPrenup and create an account and then invite their fiancé to create their own account. Next, each of you will independently go through a questionnaire to help tailor the prenup to your wishes. The questions will include topics like property division, alimony (i.e., spousal support), debt, pets, confidentiality, financial disclosure, and much more. Remember, you are both doing this separately, making your own separate choices. Then, once both questionnaires are complete, you will have a negotiation phase. This part will help you see the discrepancies in your questionnaire answers and allow you and your partner to communicate and come to a resolution.
Next up: generate that prenup! There’s no better feeling than getting a legal contract done in just an hour and a half and for $599, no less! Last but not least, sign and notarize that baby. And, bam! You’ve got yourself a shiny, new prenup. If you have legal questions, you can always take them to an attorney before signing.
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]