If you’re here, you may already have a prenup and be wondering what to do if you need to make some changes. Look no further.
A prenuptial agreement, sometimes called a premarital agreement, antenuptial agreement, or “prenup,” is a legal contract that is entered into by two people about to wed. One of the main purposes of a prenup is to define how assets and debts will be divided (among other topics) in the event of a divorce and sometimes death. You may also include topics that outline obligations during the marriage in your prenup.
As time goes by, a couple’s financial situation may change, and it may become necessary to update the prenup. This could be due to changes in their assets and debts, changes in their future plans, or changes in the laws that govern prenuptial agreements.
The legal term for updating your prenup is an “amendment.” Most lawyers will refer to updating your prenup as “amending your prenup.” Getting a prenup amended isn’t rocket science; it just takes a few careful considerations. This should be a breeze for you as long as you hire a good prenup attorney.
What is a prenup amendment?
A prenup amendment is a legal term for updating your prenup after you’re already married. An amendment is often an attachment to the existing prenup that updates the terms in the original document. The amendment will override certain sections of the original agreement that you wish to change. All of the same laws that govern prenups generally still apply to the amendment, so there shouldn’t be any unlawful or unconscionable terms included or anything that wouldn’t go into an original prenup.
If you find yourself in a situation where your prenup needs to be updated, here are a few steps you should take:
Step 1: Review the existing prenup.
A good first step to getting your prenup updated is refreshing your memory on your existing prenup. What were the terms that you stipulated? Understanding what is already in writing is a good place to start evaluating what changes need to be made.
Step 2: Discuss the need for an update with your spouse.
This should be a no-brainer. Two people are parties to a contract, and two people must agree to the terms of that contract. If you want to update something in your prenup, you need to have your spouse on board. Before going down the rabbit hole of amending your prenup, it’s crucial that you speak with your spouse, explain the need for an update, and make sure they are in agreement.
Step 3: Consult with an attorney who specializes in family law and prenuptial agreements.
Finding an attorney that specializes in prenuptial agreements is very important. You wouldn’t want to hire an Intellectual Property lawyer for this matter, as they probably don’t know the first thing about prenups! When you find a good prenup lawyer, they will be able to advise you on any changes that need to be made to your prenup and can help you draft the necessary documents. A prenup lawyer will also help ensure you are compliant with the necessary state-mandated prenup amendment formalities.
Step 4: Make any necessary changes to your prenup.
Come to your consultation appointment prepared with questions, financials, and goals. It’s important that your prenup attorney understands the full financial landscape of you and your spouse, so bringing any documentation of new (and old) assets and debts is important. You also want to come prepared with your goals for the amendment. What is it that you want to change?
Step 5: Review your updated prenup with your attorney.
After your consultation with your attorney, they will likely need some time to write up the amendment. This may take several days to weeks. It could even take months if the amendment is very complex. Whenever the amendment is complete, the attorney will send it over for review and explanation. Read it over and make sure you understand everything clearly. Your attorney should be able to explain the legalese for you and answer any questions you may have.
Step 6: Both parties should sign the updated prenup and have it notarized.
A prenup lawyer will help make sure you are in line with state-mandated formalities. For example, some states require witnesses to a prenup. If you live in a state that requires witnesses, you will likely need witnesses to the amendment, as well. Not only that, but of course, also signing and notarizing will be required. Not every state requires notarization, but it may be a good idea to get this done anyway. Your attorney can help you with all of this and more.
Step 7: Keep a copy of the updated prenup in a safe place.
After you’ve signed, notarized, and witnessed (if necessary), make sure to also store three originals in a safe spot. One original should be given to your spouse, one original for you, and one for you to keep in a joint location. You should also keep an electronic copy handy, as well. The best place to keep originals is somewhere secure, like a safe. If you don’t have a safe, your next best option would be somewhere that locks. If you don’t have that, then just make sure your prenup is safe and sound, somewhere that you know you’ll be able to access it if needed.
Why would a couple need to amend their prenup?
Now that you understand what to do if your prenup needs to be updated let’s talk a little bit about why a couple may want an amendment.
One reason may be a change in finances. For example, let’s say Jacob and Hannah get a prenup when they have very little assets and only debt. The prenup they create basically only separates debt but allows all assets to be shared. If Jacob creates a startup tech company and plans to sell it for $100 million, he may want to reconsider the terms of the prenup.
It works the opposite way, too. Let’s say John and Katie enter into a prenup at a time when Katie has a net worth of $20 million. In their prenup, they stipulated a lump sum payment which allowed John to receive a payment of $1 million from Katie upon the divorce. Fast forward a few years, and Katie goes bankrupt, and her net worth drops to $500,000. Katie may want to reconsider the prenup terms at that point.
Another reason may be because of an unexpected turn of life events. Perhaps you never planned on having children, but whoops! You had a happy accident! Now, one person wants to stay home with the child and forgo their career. At this point, they may want to reconsider their prenup and make sure that the stay-at-home parent is provided for (if not already). Sometimes, things just change in a marriage. Many years may pass, and things may change in your relationship, finances, lifestyle, goals, needs, etc.
There was a significant change in the laws. For example, if there was a change to the alimony laws in your state, you may start having second thoughts about the prenup that you previously stipulated. Any new change in law may have significant tax implications that weren’t in existence when you entered the prenup. This may be a good time to talk to your spouse about updating your prenup.
Perhaps you simply no longer want to have a prenup. Revoking a prenup may also be an option. This may be because you two believe you no longer need the prenup, or it’s been so long that things have changed drastically. Maybe kids are in the picture now. Whatever the reasoning is, revoking the prenup may be possible as long as both parties agree.
It’s essential to remember that a prenuptial agreement is a legally binding contract and should be taken seriously. If you’re unsure about whether your prenup needs to be updated or if you have any questions about the process, it’s best to consult with a lawyer. Updating your prenup can be a simple process, but it’s important to make sure that it’s done correctly to ensure that it will be enforceable in the event that it’s ever needed.
In conclusion, updating your prenup is not only important to make sure it complies with the laws of the state but also to ensure that it reflects the couple’s current financial situation. With a little bit of effort and planning, you and your spouse can have peace of mind knowing that your wishes are protected in the event of a divorce.
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]