If you are considering a prenup, there are a few things you should start thinking about. For one, is your partner even interested in a prenup? Or are they against it completely? What about validity requirements and state compliance? Have you thought about that? Don’t forget about the manner in which you will actually get a prenup done. And do you have children from another relationship? Yes, that matters when it comes to a prenup. Last but not least, what do you want to put in your prenup? We will dissect each of these things in depth below.
Your partner may not be on board
You may be sitting here contemplating a prenup, but unbeknownst to you, your partner is vehemently against prenups. If that is the case, don’t worry, we have some resources for you. Prenups don’t need to be scary, and there are plenty of points to make in favor of a prenup. Here are some tips on having the prenup-talk with your honey:
- Explain how prenups are actually romantic
- Discuss what happens in a divorce without a prenup
- Talk about how you can protect both your and your partner’s assets
- Mull over the notion that prenups aren’t meant to protect just one person; they are legally required to be reasonably fair
With these pointers in mind, you should be able to get the conversation started around prenups.
Validity requirements and state compliance
You should also consider the fact that prenups have strict requirements that must be met in order to have a valid prenup. If you don’t meet these requirements, you don’t have a prenup. In other words, a court is highly likely to throw out a prenup that doesn’t meet the state validity requirements. These requirements vary from state to state. What is considered a valid prenup in California may not be a valid prenup in Florida. For example, California has a unique rule that is only required in California, known as the 7-day rule. This rule basically says you need seven calendar days between the presentation of the prenup to the other spouse and the signing of the prenup. If you fail to meet this rule, a court will not enforce your prenup, and you will have to abide by the default California divorce laws.
Some validity requirements that are common amongst many states include putting the prenup in writing, signing it, having it notarized, and making sure both parties enter the prenup voluntarily. This is not an exhaustive list of validity requirements, but you get the idea.
How will you get your prenup done?
By this, we mean will you get an online prenup or go the traditional route of hiring an attorney? Or maybe do a mix of both? The option is yours. We’re here to tell you with an online prenup platform like HelloPrenup, the cost is fixed and much cheaper than a traditional attorney at just $599 per couple (you’d be saving $1,900 or more going the online prenup route). There is also a level of time-saving. You can get a prenup done with HelloPrenup in under two hours. Using a traditional attorney can take weeks or even months to complete.
If you want to do a mix of both online prenup and attorney, you can do so and still save yourself heaps of money and time. By using HelloPrenup to draft the prenup, you cut down on the attorney’s hourly fees for drafting up the prenup and cut straight to the review and questions section.
Protecting children from a previous relationship
If you have kids from another relationship, you should consider their financial needs and future inheritances before signing your prenup. Let’s demonstrate this concept with an example. Let’s say you have two kids from another marriage, and you also have a new child with your new future spouse. You two decide that you will be the stay-at-home parent for this new child (along with your other two kids). You forgo a career and trust in the marriage. In this scenario, you may not want to waive alimony (i.e., spousal support) because, in the event of a divorce, you will need to support your other two kids without the help of your new spouse. Alimony could help you get back on your feet and provide for your other kids while you look for a new job. Moral of the story? You may want to consider how every single clause in the prenup would directly or indirectly affect your children.
Let’s say you have adult children from another relationship. A prenup can also affect them. Let’s say you are set to receive a large inheritance from your father ($1 million). If you don’t protect said inheritance in your prenup, you could risk losing some of that money to your future ex-spouse. This cuts directly into your kids’ future inheritance, too. Now they will have less money from you when you pass away.
What do you want to put into the prenup?
You’ll need to consider what you actually want to put into your prenup. What is the underlying principle you want to achieve with this document? If your main goal is to protect your inheritance and nothing else, then you should keep that in mind when you are drafting the agreement. If your intention is to protect yourself against your spouse’s staggering debt, then let that guide you through each topic. Having an underlying principle and goal really helps to center you through the prenup-making process.
Let’s dive into some topics you might include (or not include) in your prenup.
What will be considered separate property, and what will be considered marital/community property? Remember, separate property is not subject to division in a divorce. Marital/community property is subject to division in a divorce. In other words, if you want to protect it, make it your separate property in a prenup.
Alimony is money paid from one spouse to the other, more financially disadvantaged spouse. It is sometimes referred to as spousal support or maintenance, depending on your state. So, do you want to ride the alimony pony or not? Generally, you and your partner may waive alimony altogether in your prenup or leave it up to the courts to decide. Chat with your partner and decide what’s best for your situation.
Whether it’s debt from before the marriage or during the marriage, it could be assigned to either spouse, regardless of who took out the loans. Are you okay with the potential of taking on some of your partner’s premarital debt? Are you okay with taking on some of your partner’s debt that you had nothing to do with but was taken out during the marriage? If the answer is “no,” then you should mark all types of debt as separate debt in your prenup.
Lump sum payments
This clause typically comes in handy when there is either a stay-at-home parent/homemaker and/or a large financial disparity between spouses. A lump sum payment is a payout upon divorce from one party to the other. You could say, “Spouse A shall pay $50,000 upon divorce to Spouse B.” This would help the stay-at-home parent to get on their feet and figure out how to support themselves post-marriage. It could also be a way to even out power dynamics between a couple with a large financial discrepancy. Allowing the person with less money to have a significant monetary payout at divorce can give them agency in the relationship.
Inheritances and gifts
An inheritance is something someone gives you after they die. A gift is something someone gives you while they’re still alive. You can protect both inheritances and gifts in a prenup. The question is: do you want to?
It’s important to note that many people mistakenly believe that inheritances are automatically protected in a divorce. It’s “dead” wrong (okay, bad pun, sorry). Your inheritance could be split up with your future ex-spouse in a divorce.
As for gifts, think about any large wedding gifts, Christmas gifts, birthday gifts, childbirth gifts, etc., etc. Maybe you have a truly doting family who loves to gift you $10,000 every year for Christmas or Hanukkah. Are you okay with possibly splitting that up in a divorce? If not, write it into your prenup.
There are tons of other clauses to consider putting in your prenup. HelloPrenup’s platform can walk you through the different options you have, and you can choose whether you want to include them or not. To name a few, pet “custody,” confidentiality, social media image, insurance, death, infidelity, and sunset clauses are all options and things you should consider putting into your prenup.
The Bottom Line
There’s a lot to consider, but as long as you give yourself enough time (three to six months before the wedding), you should be just fine. Take a deep breath, and get your wheels turning. Getting a prenup is just one step towards a lifetime 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]