“Legal implications of a prenup” sounds so scary. It means, “what are the consequences of signing a prenup.” In other words, legally speaking, what happens when you sign a prenup? Well, immediately after signing a prenup, a genie wearing a judge’s robe appears on your desk, and you are granted three wishes… alright, alright, we’ll put the bad jokes away… for today. The legal implications of a prenup are pretty straightforward: you are bound to the terms that you agree to in the prenup. If you said in your prenup that you want to require you and your spouse to maintain life insurance, welp, you guessed it, you both are legally required (by your own accord) to maintain life insurance.
What is a prenup?
Let’s take a few steps back. Before understanding the legal implications of a prenup, you should probably understand what a prenup is. A prenup is a contract between two lovebirds engaged to be married. If they never get married, the prenup is invalid. That is to say; a prenup is only effective upon marriage. And, no, you cannot get a prenup if you are in a domestic partnership or anything other than a marriage. The prenup must also be executed before the wedding. A prenup executed after the wedding day is no prenup at all.
A prenup can cover topics such as division of property, spousal support (i.e., alimony), debt allocation, confidentiality, infidelity, and more. Prenups can also cover obligations during the marriage as well as after the marriage ends. For example, in a prenup, you might include whether or not you two will maintain separate or joint bank accounts during the marriage.
How does a prenup work?
A prenup is a contract you make between yourself and your future spouse. What goes into the prenup is up to you guys. No one can tell you what to put in there (sure, a lawyer will tell you what will and won’t stand up in court), but if within reason, you can put whatever you want in the prenup. If you change your mind about something in the prenup, you might also be able to amend it later on but will need to follow strict state guidelines on how to do so.
So, when does a prenup come into play? Well, it may never come into play! In fact, many people hope that it never does. If the unfortunate “thing” happens and you find yourself in the midst of a divorce, then a prenup will be there to support you. How? Well, you’ve already decided on many of the hard-hitting issues that divorce typically requires you to decide on. And you did it without all of the emotional wreckage that comes with a divorce! Typically, when you’re deciding these issues in a prenup discussion (property division, spousal support, etc.), you are not emotionally elevated. Compare that to a divorce; trying to divide up property and determine spousal support when you want to wring each other’s necks is tough. Not to mention, prenups save you time and money. The money you would have spent arguing over these issues in court can add up quickly. Do you know what else is saved? Your sanity. See? Prenups are really there to support you in so many ways.
Legal implications of a prenup
Now, let’s get into the nitty-gritty. Again, when we say “legal implications,” we simply mean the “consequences” of signing a prenup. What happens when you sign a prenup? Well, it really all boils down to what you put in it.
Bound to the terms of a divorce
The meat and potatoes of a prenup are pre-determining issues ahead of a possible divorce. Let’s be real, people; the divorce rate is, and has been, around 40-50% for years now. It’s basically a flip of a coin, and a prenup helps make that divorce transition much easier. The first legal implication of a prenup is an easier divorce. Okay, maybe that’s not a legal implication, but it’s an implication!
One legal implication is for certain when it comes to prenups, if you create a valid and enforceable agreement, you are bound to its terms. You cannot go back on your word; it is a contract, just like if you signed a rental property lease, you’d be bound to it. Let’s walk through a scenario of how you might be bound to a prenup.
John and Katie are getting married and setting up their prenup. John is wealthy, with family money and a CEO salary. Katie is a nurse and does not have many assets to her name. They are in love and believe the prenup is just a formality and precursor to their happily ever after. In the prenup, Katie agrees to waive spousal support and any rights to John’s property, including his future inheritances. She thinks, “I am an independent woman; I don’t need his money anyway; I’m in it for love.” They sign off on the agreement and live happily ever after…for a few years. John ends up cheating on Katie, and Katie files for divorce. She’s bitter, angry, and looking for revenge. She wants to snag some of John’s $10 million dollar inheritance from Daddy Warbucks. But, the legal implications of the prenup that she signed and agreed to, of sound mind, say otherwise. Remember, she agreed to waive her right to any of John’s inheritances out of love. She can’t just throw that out now that she doesn’t like its consequences anymore. That’s not how contracts work!
Bound to the terms of the marriage
Yes, prenups can also bind you to terms that take place during the marriage. Prenups aren’t always about divorce, believe it or not. Don’t get us wrong, most of the terms of the prenup revolve around divorce, but there are a few that are only for during the marriage. Let’s dive in.
Life insurance. You can include a clause that requires your spouse to maintain a life insurance policy, with you as the beneficiary, for a certain death benefit amount. For example, John and Mary will both maintain life insurance policies for the benefit of each other, with a death benefit of $100,000. The life insurance clause requirement is typically maintained for as long as you two are married. If divorce hits, you are typically released from this obligation.
Joint bank account. Will you or won’t you…have a joint bank account? That is the question! Should you choose to have a joint bank account, then there are other questions you must answer. How much will each of you contribute each month? What expenses will be paid from this joint bank account? Whatever you decide, you must agree on. For example, John will pay $3,000 per month, Mary will pay $2,500 per month, and all household expenses will be paid from the joint account. Why is this important? Because joint bank accounts are typically treated as community/marital property and are subject to division in divorce. In plain English: the bank account will be split up, so you want to be comfortable with what went in and what went out.
Confidentiality. Wait, what?! Confidentiality? Yes, that’s right. You may include a confidentiality clause in your prenup with your honey. Why would someone want to do this? For many different reasons. Maybe they’re an ultra-private person, maybe they have a business that needs protecting, maybe they are a public figure, or maybe they have sensitive family matters. Whatever the reasoning, if you sign a confidentiality clause in your prenup, you are bound to “zip your lip” throughout the marriage and afterwards.
Social media image. Ahh, it sure is 2023, isn’t it? A social media image clause protects people against their spouse posting nasty things about them. Anything humiliating or disrespectful is off-limits. Yes, that includes nudes. This clause, similar to the confidentiality clause, lasts throughout the marriage and even after the marriage ends. So, you may not post your ex-husband’s nudes after the divorce is final.
Infidelity. Fair warning: this clause doesn’t hold up in many states. Even though you hear about it all the time, many courts will choose not to enforce it. As you probably guessed, infidelity clauses say, if you cheat on your spouse, you will pay them $X. It’s a NO-CHEATING clause. It controls while you’re still married (obviously).
As you can see, the legal implications of a prenup are whatever you make them out to be. If you agree to something in your prenup, you better be ready to act on it when the time comes. The legal implications can be while you’re still married or after the divorce comes to an end. Make sure you read and understand your prenup thoroughly to understand all of your legal implications.
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]