We get it, you’re busy, and you have no time to go to law school to learn the ins and outs of prenuptial agreements. What are they? How do they work? What can you put in a prenup? What can you NOT put in a prenup? And, finally, how do I go about getting one?! We answer all of these questions and more for you below!
Back to basics: what is a prenup?
Let’s break it down in plain English: a prenuptial agreement, commonly called a prenup, is a legally binding agreement entered into by two individuals prior to their marriage. The agreement outlines the financial understanding between the two parties both during the marriage and in the event of a divorce. This may include, but is not limited to, division of assets and debts, spousal support (i.e., alimony), and other non-financial clauses such as pet ownership, confidentiality, and social media image. It is important to note that a prenup is only enforceable after the couple has legally tied the knot.
What can you include in a prenup?
There are a ton of different provisions you can include in your prenup, and what you specifically should include is heavily dependent on your state laws and your unique situation. For example, someone without any pets shouldn’t bother with a pet clause, of course. Let’s dive into a few things people should consider including in their prenups:
Separate property vs. marital/community property
A prenuptial agreement often addresses the treatment of separate property in the event of divorce. If something is deemed separate property in a prenup, then it is not subject to division in a divorce. On the flip side, if something is characterized as marital/community property in a prenup, then it is divisible in a divorce. Keep in mind whether your prenup will say “marital property” or “community property” depends on your state laws.
For example, let’s say you own a boat before getting married. If you want to protect your boat, you should outline in your prenup that all your property owned prior to marriage is deemed separate property (which includes the boat). Remember, separate property = yours and yours alone in a divorce. Let’s say you want to outline in your prenup that the boat is to become marital/community property; in that case, the boat may be “divided” between spouses in a divorce.
Spousal support, also called alimony or maintenance (depending on what state you’re in), refers to financial support paid from one ex-spouse to the other. A prenup can include provisions regarding spousal support, such as waiving the right to receive it all together, limiting it based on the length of the marriage, or leaving the decision up to a court.
Debt is another aspect to consider in a prenup. You can include clauses regarding debt incurred before and during the marriage. For instance, you can specify how pre-marital debt should be handled (kept separate or joint?) and what should happen to debt acquired during the marriage. Given the current high levels of student loan and credit card debt, it’s important to think about debt when it comes to your prenup.
Inheritances and gifts
Gifts and inheritances received during the marriage can also be addressed in a prenup. For example, if the prenup specifies that each spouse’s inheritances are their own separate property, then, in the event of a divorce, the court would likely consider them separate and not subject to division.
For example, let’s say you are expecting a large wedding gift (i.e., a “starter” house, let’s say) from your grandparents. You know this gift is coming, so you want to make sure it remains your property, even in the event of a divorce. You can make sure your prenup delineates that all gifts are your separate property. This same principle applies to inheritances, as well.
Pets are considered personal property in most states (yes, you read that right). Most states will use traditional personal property legal principles when dividing up a pet (think: who bought it?). If that’s not sitting right with you, we get it. You can make sure to include a provision in your prenup regarding pet ownership in the event of a divorce. This can include who gets ownership, as well as the associated costs such as medical care and food. Some states even allow for a pet visitation schedule to be included in a prenup.
Life insurance clause
A prenup can also include clauses regarding life insurance. For example, you can require your spouse to maintain a life insurance policy with you as the beneficiary and specify a death benefit value. This can provide financial support to cover costs such as funeral expenses and medical bills. Not the most lighthearted topic to think about, but it’s the unfortunate reality!
A confidentiality clause in a prenup can be useful for people who want to maintain privacy for their business, family, wealth, fame, or personal matters. Or maybe you just want to throw it in there “just in case,” and that’s fine, too! A confidentiality clause generally requires both spouses to refrain from disclosing private information to the public, including the matters within the prenup itself.
That’s not all, folks. There are a lot more things you can add to a prenup, but these are some of the more common ones. Still looking for more? Check out our full list of prenup clauses here.
What can you not include in a prenup?
Okay, so we talked about what to include in a prenup, but what about what NOT to include?
One common topic to avoid in a prenup is child matters. Nearly all states do not allow parents to write in child custody or child support matters into their prenups. Why not? Well, children have individual needs that change over time, and it can be difficult to contract to what a child needs years before something actually happens. Not to mention, most state courts like to apply best interest factors for the child, and what the parents think may be in the best interest of the child may not actually be in their best interest.
Avoid extremely one-sided prenups. This means avoiding leaving one person destitute. Generally, most state courts will not allow one spouse to float off on their yacht while the other applies for a space at a homeless shelter. Okay, that’s probably an exaggeration, but you get the point. What is considered “fair” can vary from state to state, but the general consensus is to make sure both parties have SOMETHING and aren’t left needing public assistance.
Try to stay away from generally awful things, like illegal acts, while you’re at it, too. We’re talking about drug use, theft, murder, tax fraud, etc. The obvious no-nos. A court will not be upholding anything illegal, so don’t even think about it!
How does a prenup work?
A prenup is sort of like marriage insurance, if you will (and no, it’s not ACTUALLY insurance). There’s around a 50/50 chance of a divorce, and in a divorce, you risk losing some of your assets. With a prenup (i.e., the “marriage insurance”), you are insuring your assets in the event that a divorce takes place. You insure that you don’t lose assets in a way you would without a prenup. See, when a divorce happens, state laws apply. And state laws generally like to favor fairness, but sometimes what the state deems fair may not be what you consider fair. So, a prenup acts as a safeguard to your assets that would otherwise be split up in a divorce.
A prenup helps you streamline a potential future divorce by deciding on topics such as property division and alimony long before the divorce even takes place. If you do end up getting a divorce, you can invoke your prenup. Usually, you do this privately between lawyers. Sometimes one spouse contests the prenup and argues it shouldn’t be upheld by the court. In that case, you may have to “argue” over the validity of the prenup.
How to get a prenup
There are several options for getting a prenuptial agreement, including hiring a lawyer, using an online platform, or a combination of both. However, we don’t recommend that you create a prenup on your own without professional guidance.
If you decide to go with an online prenup, using a platform like HelloPrenup, you can complete the process from the convenience of your living room. Each partner creates their own account and completes a personalized questionnaire, resulting in a prenup tailored to your specific needs rather than a generic template which is what many other online platforms offer. With HelloPrenup, after completing the questionnaire, any differences in answers can be addressed through a negotiation phase. Once agreements are reached, the prenup can be generated, signed, and notarized. And, bam! You’ve got yourself a pretty little prenup within just a few hours and all while sipping wine in your PJs at home!
Hybrid (both online and attorney)
At this point, after you’ve generated your online prenup, if required or desired, you can consult a lawyer before signing the prenup to address any questions or review the contract. This hybrid approach, utilizing both an online prenup and a lawyer, can save time and money as the lawyer’s role is limited to reviewing the contract and answering questions rather than drafting the entire prenup.
Then there is the attorney route, which is the traditional way of getting a prenup before technology stepped on the scene. Attorneys are usually helpful, knowledgeable, and able to draft you a legally sound prenup. Attorneys are a tried and true way of getting a prenup, but it’s important to understand that attorney-made prenups have their issues, too. Just because an attorney does your prenup, it isn’t a 100% guarantee that it will be upheld by a court.
How HelloPrenup can help!
HelloPrenup is an online platform for do-it-yourself prenups. You can always take our prenup to a lawyer and have them review it, too, for a gut check, legal questions, or representation.
We make it easy, stress-free, and affordable to get a prenup–all possible in under two hours! Yearning for more? Click here to read more about how HelloPrenup works.
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]