Many people ask us what documents or information they need to bring or prepare before getting a prenup. It’s fairly straightforward: you don’t need much, just financial information and your goals for the prenup. There’s no need to scrounge for your passport/birth certificate/marriage license, or anything of the sort. It’s easy peasy! Let’s dive into some of the details of what information you should prepare before getting a prenup.
There’s a part of the prenup-making process in which you need to share your financial information with your partner. This means EVERYTHING, not just some of it. Assets, debt, and future inheritances. If you leave out anything, you put your prenup at risk of being thrown out. This process is known as financial disclosure.
Every state has its own rules on financial disclosure and requires it to some degree. For example, in some states, you need full and fair financial disclosure (meaning everything needs to be explicit); other states may say adequate knowledge of finances is enough. Even some states will allow you to waive your right to receive financial disclosure from your spouse. But the bottom line is that every state requires some level of financial disclosure, so don’t skip it!
How can you prepare for this? Well, you don’t necessarily need the actual financial statements themselves to be in compliance with financial disclosure. However, it’s never a bad idea to include the documents. There’s a difference: financial disclosure is simply telling your spouse how much you have, and document exchange is showing your spouse your finances with statements and other financial documents. Again, document exchange isn’t strictly required.
So the best way to prepare for financial disclosure for yourself is to pool together all of your financial information. Here are some of the things you may need to gather prior to getting a prenup:
- Income (tax returns, pay stubs)
- Debt (mortgage statements, car loans, medical debt bills, student loan statements, etc.)
- Accounts (bank account statements, retirement plan statements, investment account statements, etc.)
- Assets (business tax returns, vehicle titles, and registrations, kelly blue book values, titles and deeds to real estate, appraisals of personal property like jewelry, etc.)
- Future inheritances (this one may be more difficult to produce, but you could include the trust or will information if you have access to it)
Again, you do not need to produce these documents in order to create a prenup. You simply need to know the accurate value of these. So you can start gathering these documents privately to make sure you understand the values of each thing you own. If you choose to do a document exchange (where each spouse shares financial statements), then you can do so, but it’s not strictly required.
The bottom line? Understanding the full scope of your finances is crucial to creating a prenup. You don’t need to hand over these documents to anyone (unless you want to), but you just need to know the exact value of each.
You can’t create a prenup without knowing what you want. If you have absolutely zero idea what to do with your prenup or what your goals are, you may want to do some research of your own and/or contact a local attorney to help you understand your options.
With that said, we’ll walk you through some prenup clauses that may help get your brain juices flowing to help you come up with your own goals.
Separate Property vs. Community/Marital Property
How do you want to treat your property? Things you owned before marriage? Things you buy during marriage? Think: real estate, bank accounts, businesses, etc. Do you want to share those things or keep them separate? If you choose to share them, that means that your spouse will have a cut at the time of divorce. If you choose to keep them separate, it means your spouse will NOT be able to take a cut of those things in a divorce.
The debt you’ve incurred prior to marriage and the debt you will incur during the marriage–how should it be treated? Should it stay separate or shared? For example, if your spouse plans to take out hundreds of thousands of med school debt, do you want to be responsible for that in a divorce? What about business debt? Credit card debt? You can determine who gets what debt based on whether it was taken out prior to marriage versus taken out during the marriage.
To waive or not to waive alimony in your prenup. Alimony is the financial support from the higher-earning spouse to the lesser-earning spouse when the marriage ends. It is separate from child support completely; its purpose is to support the spouse after the marriage comes to an end. There are ways to address alimony, such as limiting alimony, capping it, waiving it, or leaving it up for the court to decide. Beware, though, there are dangers to waiving alimony, and you should be careful when making this decision.
Other Miscellaneous Clauses
Things like pet custody, health insurance, life insurance, lump sum clauses, engagement ring clauses, and others may be something to start thinking about. Here is a list of just some of the miscellaneous clauses you can add to your prenup:
- Pet custody
- Engagement/wedding rings
- Primary residence (who gets to stay in the home after the marriage ends, but not forever, just a period of time to get back on their feet)
- Confidentiality clause
- Social media image clause
- Infidelity clause
- Lump sum payments/equalization clause
- Death clause
You don’t need to include any of these clauses if you don’t want to, but they may be a good idea to consider before getting a prenup.
The Bottom Line
There’s no real documentation required to get a valid prenup. You don’t need to attach your birth certificate or a photocopy of your driver’s license. What you do need is an accurate knowledge of your finances and goals. You MUST include an accurate picture of your finances (assets, debt, inheritances) otherwise, you risk throwing the prenup out. Now, that doesn’t mean you need to attach every single financial statement you own (but you can if you want to, it never hurts).
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]