POV: You’re about to say “I do,” but the thought of “what if” lingers in the back of your mind. Well, don’t stress, you’ve come to the right place! If you’re considering a prenuptial agreement but don’t know where to start, welcome to Prenup 101, where we’ll break down everything you need to know about prenups in simple, easy-to-understand terms. By the end, you’ll be ready to make informed decisions about this big step in your life, and no one can say you’re a “prenup dummy.” Let’s get into all things prenuptial agreements!
What is a prenup?
Let’s start with the basics. A prenup (short for prenuptial agreement) is a legal contract between you and your partner, created before you get married. It spells out how property and finances will be handled during the marriage and in the unfortunate event of a divorce, but it can also outline certain terms for during the marriage, such as joint bank accounts. Think of it as setting clear boundaries and expectations to protect both of you just in case things don’t go as planned.
Who gets prenups?
Spoiler alert: Prenups aren’t just for the super-rich! While it’s true that celebs use prenups to protect their fortunes, they’re just as useful for any couple. In fact, a whopping 50% of millennials approve of the use of prenups. Here’s why you might want a prenuptial agreement:
- You’ve got assets: Do you own property? Have investments? A retirement account? You’ll want to decide whether those assets stay separate or not.
- One of you earns way more: Does one of you make way more than the other? A big income gap can cause tension in a relationship. A prenup can ease some of that by outlining expectations, and potentially providing for a wealth equalization clause.
- You’re a business owner: If you’ve got a business or a side hustle, a prenup can protect those interests and ensure your business doesn’t take a hit in a divorce.
- It’s not your first rodeo: If you’ve been married before or have kids from a previous relationship, a prenup can make things crystal clear about finances and ensure you don’t lose any more money to another ex-spouse.
- You’ve got debt: Whether it’s student loans or credit card debt, you’ll need a plan for handling it together.
- Peace of Mind: Knowing everything is sorted ahead of time can help reduce stress and uncertainty.
At the end of the day, prenuptial agreements are for anyone who wants to protect their assets, whether they have assets yet or not. You can also protect future-you and ensure your financial security in any scenario.
The pros of getting a prenup
We like to think of prenups as being marriage insurance—you’re just protecting your assets and limiting liabilities in case life throws you a curveball. Here’s what you stand to gain:
- Relationship building: Prenups can facilitate important conversations between couples to talk about the hard stuff before saying I do. These conversations can help strengthen your bond, align values, and clarify expectations.
- Keep what’s yours: You can decide what stays separate versus what becomes marital property.
- Set financial goals: It’s a handy tool for figuring out financial plans and expectations for your marriage.
- Avoid legal disputes: If divorce ever happens, a prenup makes dividing things up smoother, cheaper, and less stressful.
- Protect family stuff: If you expect an inheritance or stake in a family business, a prenup can make sure it stays in the family.
- Keep debt in check: You can protect one partner from taking on the other’s debt. Got student loans, business debt, or credit card debt? Rest assured that you’re safe with a prenup.
- Plan for the future: Thinking about kids or new business ventures? A prenup can help spark these convos and cover future assets.
- Control your fate: It gives you more control compared to state divorce laws, which may not always feel fair.
The bottom line is that there are tons of benefits to getting a prenuptial agreement, from relationship building to financial security. What can’t a prenup do is the better question!
The cons of getting a prenup
While they can be super helpful, here are some things to keep in mind about the potential downsides of a prenuptial agreement:
- Extreme life changes: While a good prenup generally accounts for common life changes, such as future children, if your situation materially changes (we’re talking, winning the lottery type changes), then you may need to amend your prenup.
- Legal headaches: If it’s poorly written, unreasonably unfair, or the prenup was unfairly obtained through duress, a prenup could get challenged or thrown out by a judge.
- Costs: Hiring an attorney isn’t cheap! Prenups’ on average, can cost a couple around $8,000. Creating a prenup doesn’t have to break the bank. HelloPrenup makes it easy and affordable, for just $599, with access to flat rate attorney fees (no surprise fees!).
Everything good in life comes with its disadvantages, right? Prenups are no exception. The main issue with prenups is the cost factor and HelloPrenup has lowered that barrier to entry by making prenups accessible and affordable to everyone!
What happens if you don’t get a prenup?
If you don’t have a prenup, your state’s divorce laws take over. Depending on where you live, this could mean a 50/50 split of everything (community property states) or a more “equitable” division based on various factors (equitable distribution state). But with a prenup, you get to decide how things are handled—giving you way more control. In addition, state law will dictate how and if alimony (i.e., spousal support) is awarded. This means whether or not one person will be responsible for paying financial support to the other spouse for a set amount of time after the marriage comes to an end. Again, a prenuptial agreement may be able to override alimony laws in certain states.
When should you get a prenup?
The sooner, the better! We recommend starting the prenup conversation three to six months prior to your wedding day. This doesn’t mean that a prenup done two weeks before the wedding is invalid, though. You just want to give yourselves enough time to have open discussions, get your finances in order, and negotiate any details. Don’t wait until the last minute—some states might even throw out a prenup signed too close to the wedding day, though it’s generally difficult to do. Some states have specific laws, such as California’s 7-day rule, requiring specific timelines prior to the wedding to maintain validity.
What do you need for a prenup?
Keep in mind that every state has its own rules on prenups. However, there are several common themes across the U.S. regarding what makes a prenup valid and enforceable. Here is what to know:
- Written Agreement: It needs to be in writing (no verbal contracts allowed).
- Both parties must sign willingly: Each party must actually sign the document, and no one should feel unreasonably pressured to sign.
- Informed decision: You both should understand what you’re signing and agreeing to, though some states will uphold an agreement even if you claim you didn’t know what you were signing, so make sure to read those contracts, people!
- Full financial disclosure: You both need to lay everything out—no hiding assets or omitting information. You’ll need to provide a full list of all assets, debt, income, and future inheritances in order to ensure everything is fair.
- Fairness: It has to be reasonable. This doesn’t necessarily mean 50/50, though! A court typically won’t enforce a prenup if it is egregiously one-sided, and they will make this determination on a case-by-case basis.
Some states have additional requirements, such as notarization and witnesses, so its important to check with your state laws on what is required.
What can you include in a prenup?
Your prenup can be as simple or as detailed as you want. Here are some common clauses that couples include:
- Division of assets: What’s yours? What’s ours? What’s mine? Lay out the division of all your assets.
- Debts: How are you going to handle debt? Who is responsible for what? Come up with a plan to tackle debt together.
- Spousal support (alimony): Want to waive or adjust spousal support? You can do that, just make sure it is reasonable and fair. And check state laws to see if legal representation is required to do this. In addition, some states do not allow you to contract around spousal support whatsoever.
- Inheritance and gifts: Define what is considered a gift, what should happen with gifts from third parties and any future inheritances, and decide how each will be handled.
- Business ownership: If you own a business or plan to open one in the future, decide what happens if you divorce.
- Equalization Clause: An equalization clause, sometimes called a lump sum clause, provides for one party to pay the other a lump sum in the event of a divorce. This can be beneficial for those with disparate incomes, stay-at-home parents, or just a way to simplify the division of assets.
- Future Assets: Think through what you want to do with all potential future assets like future income, business ventures, property acquisitions, and appreciation of current property.
- Children: If you already have children (or are planning to), you might want to set aside assets for them.
- Embryo Clauses: Maybe you don’t have kids yet, but you know you want to build a family. Well, even if you aren’t considering assisted reproductive technology right now, you may want to think through this hypothetical with your partner to see if an embryo clause would be a smart addition.
- Pets: Do you already have a pet? Couples can consider their pets when drafting prenups so you can come up with a reasonable plan well ahead of time.
- Lifestyle clauses: You can also lay out your expectations for marital behaviors by adding certain lifestyle clauses. Heads up, though, not every state enforces these clauses, so make sure you consult an attorney if you’re thinking of adding one of these!
- Sunset Clause: For more flexibility, you can include a sunset clause, which automatically dissolves your prenup after a certain date or when you hit a certain anniversary.
As you can see, there are a broad range of topics you can include in a prenuptial agreement, but always make sure to check with your state’s laws as some states have restrictions.
What can’t you put in a prenup?
There are a few things that generally won’t fly in a prenup in most states:
- Child Support/Custody: Virtually all states say that prenups cannot decide child custody or child support arrangements (with a few exceptions); these types of decisions are based on the best interest of the child at the time of separation, not predetermined by the parents.
- Illegal Provisions: This one may seem obvious, but you can’t include anything that would violate the law or public policy.
- Unfair Terms: If it’s totally one-sided, a judge may not enforce and toss the whole thing out.
The most important clauses to avoid are those involving child support and custody because those are the rights of the children, not the parents, to contract around.
Can you modify a prenup?
You can, indeed (in most states). If life circumstances change, you can amend or revoke your prenup—as long as both of you agree. State law will govern what is needed to do this, so this is where it will be important to hire a good local prenup attorney. Generally, the same requirements need to be met for a prenup amendment as were required for your original prenup. Some states may even have additional requirements, such as requiring attorney representation.
How do you get a prenup?
Okay, so you’re on board with the whole prenup thing… Now, where do you get one? There are a few different ways to get a prenup:
- Hire a lawyer the “traditional” way: You can consult with a local prenup attorney to draft a prenup for you and your partner. You can work together to protect your specific interests, provide legal guidance and advice so you can make informed decisions, and ensure it follows your state laws so it is valid and enforceable.
- HelloPrenup: Let us help! By using HelloPrenup, you can create a custom and affordable prenup, speak with an attorney for flat rates, and get your prenup notarized all on one platform online.
- DIY Prenup: You can draft your own prenup, but we don’t recommend it. There are a lot of legal nuances, and it’s very easy to miss something important.
Do you need a lawyer?
Technically, the answer is no in most states. However, there are several states that require an attorney for a prenup to be considered valid, but most states do not require it. Nonetheless, hiring an attorney can be beneficial even in states where it is not required to give an extra layer of protection. It’s important to note that even in states where attorneys aren’t always required for prenups, certain circumstances may necessitate legal representation. For example, in California, if you want to alter spousal support in your prenuptial agreement, you must have an attorney. If you leave spousal support alone, an attorney is not required in CA.
Will your prenup hold up in court?
A well-drafted prenup can definitely hold up in court! But to make sure it’s valid, you need to comply with state laws, avoid fraud/duress/coercion, egregious unfairness, and be upfront with each other. Having an attorney can add some security and help prevent any hiccups later on, though it’s not required. In fact, prenuptial agreements are generally favored by courts because it, in part, provides a roadmap for a divorce and reduces the time suck on court resources determining divorces. However, they need to be fair and reasonable and people cannot be taken advantage of along the process, given the sensitive nature of marriages and the relationships involved.
Bottom line
We hope this “Prenup-for-Dummies” guide was everything you needed to take your first step toward getting a prenup. They’re not a super complex topic, but you do need to understand the laws in your state in order to get a valid and enforceable one! And, no, you don’t need a lawyer for a valid prenup, but you should consider getting one for the other benefits they may provide. A prenup is a smart way to protect yourself and your partner. It can give you both peace of mind, help strengthen your relationship, and make sure everything is sorted in case things don’t go as planned. Happy planning!
Jess Perillo is a legal intern at HelloPrenup, and is currently a third-year student at Suffolk University Law School. She is an Article Editor on Suffolk Law Review, and is especially interested in legal research and writing. Jess is passionate about exploring the ways technology can help close the justice gap and make legal services more accessible.
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