When it comes to prenups, curiosity does not kill the cat! Curiosity revives the cat and makes him thrive! Jokes aside, asking questions is a great place to start when it comes to diving into the prenup world. Not sure what to ask? No worries, we’ve got the top 10 prenup questions everyone should ask, whether it be to themselves, to their partner, or to a lawyer. From what state to choose to whether or not you can make changes to a prenup after you’re married, keep reading to learn more!
1. What state should I choose?
The general rule of thumb is to choose the state that you plan to reside in permanently (i.e., during the marriage). That means if you’re getting married in Florida but you live in Illinois… yep, you guessed it, Illinois should be your state. If you’re living in New York now but plan to move to Florida in the next few months, you should likely choose Florida.
Things get a little stickier when you aren’t sure where you’ll be residing. Maybe you have a job that moves you around a lot, or you’re a digital nomad who moves around for fun. If that is your case, then there is no clear answer, unfortunately. What we can tell you is to avoid choosing a completely random state. You should have some ties to the state in your prenup. Also, the good news is that many states will uphold the state laws of another state, but it’s not a guarantee. Our best recommendation is to contact an attorney to get advice on your unique situation.
2. What are the laws in my state regarding prenups and divorce?
The laws surrounding prenups are dictated by state law. Why does this matter? Because every state is different when it comes to prenups! What is considered to be a valid and enforceable prenup in New York may not be considered so in California.
There are certain formalities required in each state, enforceability requirements, and permitted subjects that differ from state to state. For example, in Georgia (and a few other states), some required formalities to create a prenup include having witnesses to the signing. On the other hand, witnesses are not required in, say, Illinois (and many other states).
You should also brush up on your state’s divorce laws. This will help you get some context in determining what you would want to put in the prenup. For example, what are the default laws if you do not get a prenup?
3. What can I include and what can I not include in my prenup (generally)?
It is important to understand what you can actually put into your prenup and what you cannot put into your prenup. Again, this is dictated by state law, so each state may vary slightly in what is a permitted prenup topic.
Generally, many states allow you to include the following:
- Property division in divorce
- Property division in death
- Debt allocation
- Insurance obligations
- Any other topic that does not violate state laws or public policy
What most states do not allow you to include are the following:
- Matters involving child support
- Matters involving child custody
- Illegal subjects / unlawful acts
4. What do we want to achieve with a prenup?
Having a deep understanding of what you want to achieve with the prenup will help you speed up the process and facilitate smooth negotiations. Ask yourself what are your top three main goals when it comes to getting a prenup.
Let’s use an example to demonstrate how this can help you. Kevin and Katie are engaged and want to get a prenup. Kevin’s three non-negotiables for the prenup are: (1) protecting his inheritance, (2) protecting his business, and (3) protecting his privacy as a business owner. Katie’s three non-negotiables are (1) protecting her apartment, (2) protecting herself against Kevin’s business debt, and (3) keeping her dog Fluffy in her possession.
By understanding their top three non-negotiables, Kevin and Katie are able to quickly get through prenup questions and negotiations. For example, Katie asks Kevin to keep any of his business debt separate from her, and he agrees, but in return, Kevin gets to include a confidentiality and social image clause that protects his privacy (and Katie agrees). It’s much easier for Kevin and Katie to agree on certain asks when they know what their main goals are.
5. What are some clauses I may not know about?
Everyone knows about property division and alimony in prenups. You divide up assets and agree to/disagree to/limit alimony. But what else is there? There may be some clauses available that you didn’t know existed! So this is a great question to ask.
Again, what clauses are permitted may vary from state to state. However, many states do allow for the following lesser-known clauses, which may pique your interest:
- Social media image clause
- Confidentiality clause
- Death clause
- Lump sum clause
- Sunset clause
- Inheritance clause
- Debt clause
- Non-compete clause
- Pet clause
- Insurance clauses (both health and life)
- Infidelity clause
- And more!
6. What assets and debts am I bringing into the marriage?
Ask yourself this: what are you bringing to the marriage? Maybe that answer is simple, and it’s nothing but debt (and that’s okay, too; a prenup can still be beneficial for you!). But maybe it’s not so straightforward. Maybe you have a few investment accounts, some real estate, cars, student loan debt, and more. If that sounds like you, you may want to start asking yourself what you own and listing it out. This will also help you (1) understand how to structure your prenup and (2) help you with financial disclosure.
7. How do I want existing and future assets/income/debt to be treated?
Now that you understand what you’re walking into the marriage with, you should start thinking (and asking yourself) how you want those assets/debt and the future assets/debt you acquire to be treated in the event of a divorce. The question boils down to this: do you want it to be kept yours (i.e. separate property) or are you okay with sharing it (i.e., marital/community property)?
Here are some categories to consider:
- How do you want to treat existing assets/debt?
- How do you want to treat assets owned together (purchased before you got married)?
- How do you want to treat future income?
- How do you want to treat the appreciation of separate assets?
- How do you want to treat property exchanged for separate assets?
- How do you want to treat gifts (from each other and third parties)?
- How do you want to treat inheritances?
8. How do I enforce my prenup in the event of a divorce?
Your prenup is set, signed, sealed, and delivered. So, what now? Well, you sit back and enjoy marriage, of course! But you may want to understand the process of enforcing your prenup if the worst happens (i.e., divorce). Most people tend to go the private route and privately enforce their prenup between the two of them (with the help of their lawyers). This is by far the cheaper way to do things. Now, if one party does not want to comply with the terms of the prenup, that’s when things get dicey and expensive. At that point, you both will have to pay much more money in legal fees to ask a court to enforce (or not enforce) your prenup.
The long and the short of it is, to enforce your prenup, you can either do it privately (usually with the help of your attorneys) or ask a court to enforce it. The latter is the more expensive and lengthy option.
9. Will my prenup be enforced?
The question of whether or not your prenup will be enforced is almost impossible to answer, as no one has a crystal ball to tell you what the future may hold, how the laws may change, and what a judge will decide. For starters, any contract (prenup or not) is not 100% guaranteed to be enforced. This is the case whether or not you use a lawyer. The way to improve your chances of validity and enforcement is by creating a contract (i.e., a prenup) that abides by the laws and policies of your state.
In many states, by hiring a lawyer, you are better able to understand the contract and your legal rights. If you want legal advice or representation or simply have legal questions, you should consult with a lawyer.
10. Can I make changes to my prenup after we’ve already finalized the contract and gotten married?
Generally, yes, most states will allow you to amend your prenup, even after you’re married. And we know we sound like a broken record, but the requirements of a prenup amendment will depend on your state. Usually, what was required to create the original contract, will also be required for the amendment, but it’s not always the case. Things like keeping unconscionable terms out of the prenup, making sure both parties sign the agreement, witnesses present (if required by your state), and notarization are all fair game when it comes to amending your prenup.
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]