What is a prenuptial agreement?
Starting with the basics. A prenuptial agreement is frequently called a prenup for short. It’s a contract that two people sign prior to getting married. This contract details what happens to the couple’s assets in the event of a divorce, and sometimes death. It can include property division, alimony, debt allocation, confidentiality, insurance, pet custody, mediation, and more.
What many people fail to understand is that a prenup is actually an emotional document as much as it is a legal one. When creating your prenup, you must align with your partner on many different aspects of your future life together, and to do this you need in-depth communication. We call this super in-depth communication, “future planning.” Through good communication you two can plan out your life together and set expectations and plans. Doing this may sound like a drag, but trust us, it leads to happier and healthier marriages. In fact, according to a HelloPrenup
How does a prenup work?
You and your partner must agree to all the terms in the prenup. Once you do, you can finalize and sign it. You can store the prenup in a safe place for many years and hopefully you’ll never need to use it. If you do get a divorce and need to use it, you two must abide by the terms that you previously agreed on. If one of you disagrees with the terms in the prenup, then they have to file a claim with the court. A court may or may not agree with this person, depending on the situation. Keep in mind, contesting a prenup is not a simple lift–it involves lots of attorneys fees and time. The cheaper and faster option is to abide by the terms of the agreement.
HelloPrenup is an online prenup platform designed to simplify the process of creating prenuptial agreements. The idea behind HelloPrenup is to make the process more accessible, straightforward, and affordable compared to traditional methods.
- Sign Up and Start the Process: You can create an account on the HelloPrenup platform and begin the process of answering a series of questions as pertains to what you would like to include in the prenuptial agreement.
- Answer Questions: The platform walks you and your boo through a series of questions designed to identify assets, liabilities, and other financial considerations, as well as how you want to address these assets or accounts in the event of a divorce or separation.
- Review & Negotiation: Once you have each answered your questionnaires, both you and your partner can view any discrepancies and adjust accordingly.
- Legal Counsel: It’s worth noting that HelloPrenup has simplified the process of creating a prenuptial agreement, and also offers access to licensed attorneys in your state, at exclusive discounted rates, who can assist with legal advice, revisions, or representation, should you want them.
- Finalize & Sign: Once you and your partner are satisfied with the prenuptial agreement, you can finalize and sign it. Notarization is an important last step in the prenup process.
A few things to keep in mind:
- Laws governing prenuptial agreements vary by state and country, so it’s essential to ensure that any prenuptial agreement created through online platforms meets local legal requirements.
- Online platforms like HelloPrenup are designed to streamline the process but do not replace the need for legal expertise. Always consult with a qualified attorney to ensure your prenup is valid and enforceable.
- The nature of relationships and finances can be deeply personal, so communication is crucial when discussing and drafting a prenuptial agreement. It’s an opportunity for couples to communicate about their financial views, values, and future goals.
Why should I get a prenup?
Just as you prepare for unexpected events in other aspects of your life, it’s prudent to prepare for unforeseen circumstances in marital relationships. Consider the reasons we safeguard against uncertainties: car insurance isn’t acquired with the expectation of an accident, but rather to provide peace of mind and financial security if an accident occurs. Similarly, health insurance is not an indication of anticipated illness, but a safeguard against unforeseen medical expenses.
A prenuptial agreement, commonly known as a “prenup,” operates on a similar principle. It is not a sign of mistrust or an expectation of marital failure. Instead, it’s a proactive measure to clarify the financial rights and responsibilities of each party in the event of a divorce. Divorces, though not desired, can be complicated, and emotions can run high. By having a prenup in place, couples can potentially reduce conflicts, streamline the divorce process, and protect individual assets or interests.
A prenup can be especially valuable in cases where one or both parties enter the marriage with significant assets, debts, or children from previous relationships, or a closely held business, stock options, etc. It offers a clear roadmap of how assets should be distributed and can ensure that pre-existing family commitments, like child support or inheritance, are honored without dispute.
In essence, while love and trust form the foundation of any marriage, a prenup is a tool that provides clarity and protection. It’s about being prepared and ensuring that both partners have a clear understanding of their financial standing, should the unexpected occur. Like other forms of insurance, it’s better to have it and not need it than need it and not have it.
Is a prenup necessary?
While it’s true that within the U.S., you don’t have to get a prenup prior to marriage, it’s important to recognize that in the absence of one, state laws will determine the distribution of assets and debts upon divorce– and you may not like the result.
Each state has its own distinct set of rules governing division of assets in a divorce, commonly referred to as divorce laws. These laws, in effect, serve as a “default” prenuptial agreement. For instance, states might be classified as ‘community property’ or ‘equitable distribution’ states. In community property states, all assets acquired during the marriage are generally considered joint property and divided equally upon divorce. In contrast, equitable distribution states divide assets based on various factors to ensure fairness, but not necessarily on a 50/50 basis.
It’s essential to understand that these default laws might not always align with a couple’s individual wishes or unique circumstances. Couples who bring significant personal assets or debts into a marriage, those who have children from previous relationships, or even those with specific views on financial responsibility, may find the default laws unsuitable or inequitable.
Crafting a customized prenup allows couples to preemptively navigate potential areas of contention and establish clear, mutually agreed-upon guidelines for asset and debt division. Additionally, prenups can address matters such as spousal support, inheritance rights, and the financial ramifications of specific future events.
In conclusion, while a prenup isn’t a prerequisite for marriage, it’s a strategic tool that empowers couples to shape their financial narrative rather than leaving it to state-imposed defaults. Couples should evaluate their circumstances, assets, debts, and personal preferences to determine if customizing their own “prenup story” is the right path for them.
When should I get a prenup?
You should get a prenup well before your wedding day, not the day before. HelloPrenup recommends getting the prenup process started three to six months prior to your wedding. Each state has different laws, but in some states, getting a prenup too close to the wedding day could get your prenup thrown out if it’s ever challenged in court.
For example, in California, you cannot get a prenup within seven calendar days of your wedding because of the 7-day rule. This rule says there must be a buffer of seven calendar days between the finalization of the prenup and the signing of the prenup.
How do I bring up the topic of a prenup with my partner?
Better early than “I’m Sorry!” Between sampling cakes and practicing that first dance, don’t forget to pencil in “Draft a Prenup.” HelloPrenup suggests initiating this romantic paperwork about three to six months before you say “I do.” Think of it like the equivalent of breaking in those new wedding shoes – you wouldn’t want any uncomfortable surprises on the big day!
Navigating through legal documents isn’t quite the fairy tale, but doing it well in advance keeps those courtroom dragons at bay. Fun fact: In sun-soaked California, there’s a 7-day rule that’s not about waiting to text back after a date. Instead, it mandates a gap of seven calendar days between finalizing and signing a prenup. This ensures that both parties have the time to contemplate, “In the event of a dragon attack, who gets the castle?”
Remember, just as you wouldn’t want Aunt Gertrude seated next to your karaoke-loving college roommate, you don’t want to rush your prenup. Give it the time and levity it deserves, and then head back to those cake tastings! Don’t forget to address their issue with a prenup. If they don’t like the idea of it, ask why? Is it because they think it’s a sign of failure, maybe they think prenups are only one-sided. Whatever it is–-address it head on.
What can be included in a prenup?
There are many clauses that can be included in a prenup. Here are some of the most common ones:
- Property division (who gets what): In the context of a prenuptial agreement, property classification refers to how assets and liabilities are categorized, typically distinguishing between “separate property” and “marital (or community) property.”
- Separate Property:
- Refers to assets and liabilities that belong solely to one spouse.
- Typically, it includes assets and debts a person had before the marriage.
- It can also include gifts or inheritances received by one spouse during the marriage, or specific items or categories of assets that the prenup designates as separate property.
- Any income or appreciation from separate property remains separate, provided it isn’t commingled with marital assets.
- Marital (or Community) Property:
- This refers to assets and liabilities that belong to both spouses equally.
- Generally, it includes any assets acquired or debts incurred during the marriage, excluding gifts or inheritances.
- Some jurisdictions automatically treat earnings during the marriage as marital property, but prenuptial agreements can modify this default classification.
- Separate Property:
- Alimony (often referred to as spousal support in some states) is financial support that one spouse might be required to pay to the other during or after a divorce or separation. A prenup can address alimony in a few ways, including waiver or limitation of alimony. Some prenups might include a clause where both parties agree to waive their rights to alimony or set specific limitations on the amount and duration of alimony payments.
Other important clauses in a prenup may include: debt allocation, joint bank accounts, lump sum payments/equalization clause, confidentiality, pet custody, Alternative dispute resolution and many more. Remember, you CANNOT include child custody or child support matters in your prenup (in most states)!
How do I make sure my prenup is legally enforceable?
Make sure you abide by your state laws regarding validity and enforceability of a prenup. The laws surrounding prenups are dictated by each state, so what is considered valid and enforceable by one state’s standards may not be the same in another state. Some common requirements for validity and enforceability include:
- Putting the prenup in writing
- Both spouses signing the contract
- Entering into the contract voluntarily
- Not include unconscionable or illegal terms
Can a prenup be changed or updated after marriage?
Yes, most states will allow for an amendment to a prenup, as long as you follow that state protocol for a valid amendment (and agree to the changes with your partner).
Do both parties need to have a lawyer for a prenup?
This depends on your state. In most states, the answer is no, you do not need a lawyer for a valid and enforceable prenup. But if you do need one for certain states and situations, then you each need your own– you cannot share one attorney.
How much does a prenup cost?
With HelloPrenup, it costs $599 per couple for their prenup. With a traditional attorney the typical cost is between $2,500 to $10,000 or more.
How long does it take to create a prenup?
With HelloPrenup, it can take two hours or less (depending on how fast you and your partner can get through it). With a traditional lawyer, it can take anywhere from two weeks to a few months, depending on your lawyer’s case load and the complexity of your prenup.
What happens if we don’t have a prenup?
If you do not have a prenup, then your state default law will apply, which is essentially a default prenup. That’s right, you sort of already have a prenup (it’s just your state law). Your state law dictates what happens to your assets. For example, in community property states, the property acquired during the marriage is typically automatically split 50/50. Without a prenup, you either need to amicably come up with a plan to divide your property (which is typically pretty tough to do especially in a tumultuous divorce) or a court will decide for you. With a prenup, you will have already predetermined many issues of divorce.
Does a prenup protect assets acquired during the marriage?
Yes! A prenup can protect future assets you purchase as well as assets you go into the marriage with. You can protect appreciation on assets, as well. And the exchange of property. So, for example, if you purchase a home before the marriage and during the marriage it appreciates in value by $100,000. You can protect that $100,000. As for exchange of property, let’s say you have a house you want to keep separate. You sell that house during the marriage and buy a new one with it. That new house can be protected as your separate property, as well.
Can a prenup address spousal support?
Most states do allow you to address spousal support (a.k.a. alimony). There are some states (like New Mexico) that do not allow you to include spousal support provisions in your prenup. Other states, like California, have strict requirements around adding spousal support clauses. For example, if you modify or waive spousal support in California, you MUST get legal representation.
Can a prenup address custody or child support?
Most states do not allow you to address child support or custody. New York is one state that does allow these types of provisions in very limited circumstances. If you include child support or child custody provisions in a prenup in a state where it is not allowed, you risk getting your entire prenup thrown out (or just the clause itself).
Do prenups only apply in the case of divorce?
There are some clauses that apply during the marriage, for example, including a clause about maintaining joint bank accounts during the marriage “applies” during the marriage. However, to enforce certain clauses, most of the time, you’ll need to file for a divorce.
Can a prenup be challenged in court?
Yes, like any contract, a prenup can be challenged in court. That doesn’t mean the prenup will automatically get thrown out. It will be up for a court to decide.
How common are prenuptial agreements?
According to this poll in 2022 consisting of 1,073 engaged and married couples, about 15% reported getting a prenup, up from just 3% in 2010.
What are some alternatives to a prenup?
There are contracts known as postnuptial agreements which are very similar to prenups in that it determines what should happen to assets in the event of a divorce, except they are executed AFTER the wedding takes place. They tend to be less enforceable and many states require lawyers for them.
There are also cohabitation agreements which may be a better option for people not getting married. A cohabitation agreement discusses property rights for people living together.
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]