People often ask us what type of prenup they should get. Well, for starters there’s not really any different “types” of prenups but rather different provisions you can include or exclude. For example, you could have a prenup with really only one purpose: to divide property. Or you could just have a prenup with one clause about alimony. That’s not really the most common or practical way to do it, but it is possible! With that said, let’s dive into the “different types” of prenups that you may choose from. (And remember, you can always have multiple “types of prenups” in one).
Separate Property Prenup
The tried and true prenup clause is one that separates out property into separate property and marital/community property. It essentially says: what is yours, what is mine, and what is ours. When something is listed as “separate property” it means that it is that person’s property alone. When something is listed as “marital/community property” that means it’s shared and will be split in a divorce.
Many people want a prenup to make sure their retirement funds, real estate, and/or other assets stay their separate property. This is definitely doable with a valid and enforceable “separate property” prenup!
Maybe you have no assets and neither does your partner, but what you do have is debt. So your main concern is making sure neither of you absorbs the other’s debt. You can do this with a prenup. You can include a clause in your prenup that makes sure any premarital debt and future debt incurred by either spouse is kept separate to the borrower. The prenup can basically say what debt YOU borrow, YOU are responsible for (and vice versa) regardless of when it was taken out (before the marriage or during the marriage).
Maybe your only concern is your current or future business(es). If this is you, you may want to consider adding a clause about businesses in your prenup. You can make sure that any current or future business interests (and business liabilities) you have are kept separate, including the appreciation of the business’ value.
If your main concern is avoiding or limiting alimony in some way, then adding a provision regarding alimony to your prenup may be a good idea. Alimony (also called spousal support or maintenance) is the financial support of one ex-spouse to the other.
The ways you can address alimony include waiving it (i.e., one or neither person should pay alimony in a divorce), limiting it (i.e., putting a cap on it), or leaving it up to a court to decide.
Perhaps you’re a business owner, public figure, or celebrity (or just someone who REALLY values privacy), and you want a prenup to protect your private information. You can include a confidentiality clause in your prenup that restricts your spouse from sharing your private info. Generally, this confidentiality clause applies even if you get a divorce. So, both during the marriage and after it ends, your spouse will be required to keep their lip zipped on your private information.
Social Media Image Prenup
Nowadays, social media is king and everyone knows everything about each other thanks to social media. If you are a public figure and fear that your image could potentially be tarnished by something that your spouse posts, fear not! A social media image clause can protect you.
It works like this: you add a clause to your prenup that says neither party may post disparaging photos or information about the other online, and IF THEY DO, they have to pay a certain amount of money (you two decide on how much).
Be careful with this one!! Many states DO NOT uphold infidelity clauses, despite them being so popular. An infidelity clause (or a “no-cheating” clause) says that if one person cheats on the other, they will pay them a set amount of money (that the couple decides on). Some people may only want a prenup to try to prevent cheating. Well, we have news for you: adding an infidelity clause doesn’t necessarily mean someone won’t cheat. Plus, they’re really hard to enforce in many states, so treat lightly!
A death prenup sounds so scary and ominous. It’s not really–it’s just another layer of protection to your assets in the event of your death. The strongest way to protect your assets is through estate planning, and then adding a death clause to your prenup.
By adding a death clause, you are essentially saying you don’t want your spouse to have any access to your separate property, and instead, you want it to go through your estate plan (i.e, your will). So, if your brother is the main beneficiary of your will, the death clause helps ensure that happens without your spouse taking any of your separate property.
If you are sponsoring your spouse to come to the United States, you know that you have an extremely rigid responsibility–you must financially support them (usually) for 10 years, even in divorce (until your spouse becomes a citizen)! Now, a prenup cannot negate that responsibility of sponsorship, but it can make sure that you don’t lose more than that! With an immigration prenup, you can include provisions into your prenup that makes sure your property and assets stay YOURS, after the sponsorship is complete.
Maybe you want to keep some property separate, keep debt separate, AND add in a death clause. Or maybe you want to include ALL of the above clauses. That’s okay, too! Remember, generally, prenups cover more than just one topic, although they can cover just one, if you really want it to.
What Prenup “Type” Is Right For You?
What type of prenup for you will be one that is (A) agreed upon between you and your future spouse; (B) fair and balanced; and (C) helps you and your future spouse achieve your financial and life goals, through marriage and even in divorce (and sometimes death).
There really aren’t “different types” of prenups, but instead, a plethora of different provisions you can add into your prenup to make it customized to your needs.
Not everyone needs or wants the exact same prenup. For example, where an alimony waiver may make a lot of sense for a couple with equal net worths and self-supporting careers, it may not make any sense for a couple with a huge financial disparity and one person is a stay at home parent. This is why it’s important to negotiate/discuss what you want with your partner and make a mutually beneficial decision on the clauses you add into your prenup!
Frequently Asked Questions (FAQs) about different types of prenups
Q: What is the best type of prenup?
A: The best type of prenup is whatever you and your partner can agree on, is fair and balanced, and meets both of your goals/needs.
Q: Can I have two or more different types of prenups?
A: Yes. Like we said before, there’s not really “different types” of prenups, but rather different provisions that you may or may not include. For example, you could include separate property and alimony in one single prenup. That doesn’t mean you have “two different types of prenups” it just means you’ve added multiple provisions into one prenup.
Q: What type of prenup will get thrown out by a court?
A: Generally, any prenup that includes clauses against the law, clauses against public policy, or clauses that are unconscionable will get thrown out. That usually includes prenups that are extremely one-sided, prenups that include child matters (support and custody), and prenups with lifestyle clauses (infidelity clauses, weight gain clauses, etc.).
Q: How can I figure out what is the best prenup for me?
A: First, start with your goals. What do you want to accomplish with the prenup? Second, discuss with your partner. What are their goals? Third, have an open discussion about the ways both of your needs can be met while still accomplishing your individual goals.
The Bottom Line
There really aren’t “different types of prenups” but rather prenups that include or don’t include certain provisions. For example, you could have a prenup with separate property, alimony, and debt clauses, but nothing about confidentiality. That doesn’t really mean you have three different prenups. It just means you’ve included three different clauses into one prenup.
What “type” of prenup is right for you will depend on your goals, your relationship, and your finances. The BEST type of prenup is ultimately one you and your future spouse can agree on, that is fair to both people, and that meets your life and financial goals.
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]