Why get a prenup? When should I get a prenup? What can a prenup even do? Lots of questions, and we get it! That’s why we’ve rounded up sixteen different reasons people get prenups and also when you should get a prenup. Keep reading to see if you fall into one of the categories below!
Reasons people get prenups
Let’s jump right in. Why do people get prenups? Here are just 16 reasons below:
1. Protect assets
Of course, the meat and potatoes of a prenup are protecting assets. It’s what you typically hear as the main reason why people want to get a prenup. “I want to make sure my house stays protected in a divorce.” Or “I want to make sure my precious art collection stays in my name.”
Assets can include anything from houses to beanie baby collections to bank accounts. Basically, anything with economic value (or sentimental value) can be protected in a prenup.
How? Just make sure your valid and enforceable prenup lists out the assets you want to protect as your separate property.
2. Protect against their partner’s debt
What’s the opposite of an asset? Debt! This is another highly requested reason for prenups: avoiding a partner’s debt. Maybe they’ve taken out hundreds of thousands in student loans, business debt, or plain old credit card debt. Whatever kind of debt it may be (however big or small), you can generally include it in a prenup.
By ensuring that all premarital debt (debt accrued before the wedding) and marital debt (debt accrued during the marriage) are listed as separate in your prenup, you should be in the clear if a divorce ever arises.
3. Waive (or keep in) alimony
Alimony (sometimes called maintenance or spousal support, depending on what state you’re in) can be handled with a prenup. Whether you want to get rid of the possibility of paying/receiving alimony or make sure it stays in, you can do that in a prenup.
There are several ways to address alimony in a prenup:
- Waiving it (which means not having to pay in the event of a divorce)
- Waiving it in exchange for something else
- Letting a court make that call if the time ever comes
- Leaving it in, with limitations
Something to keep in mind is that waiving alimony comes with certain legal requirements in certain states. For example, in California, if you waive alimony, you are then required to obtain legal representation (if you don’t waive alimony, you don’t need legal representation).
4. Protect future inheritances
No, inheritances aren’t automatically protected in a divorce without a prenup. Yes, you can lose out on a portion of your inheritance in a divorce (without a prenup). How can you avoid this? A prenup, of course. You can list your future inheritances as separate property, not subject to division. One caveat is that you generally must list out this inheritance in the financial disclosure section of the prenup, which means you’ll need to talk to Dad or Grandma about approximately how much you can expect. In other words, you need to list out your estimated inheritance value in your financial schedule.
5. Protect future gifts
Along the same vein of inheritances are gifts. Gifts are given to you while the giver is still alive (that’s the main difference). Gifts might be a large wedding gift, Christmas gift, birthday gift, or any other type of large gift that you may receive during the marriage. You can ensure that gifts from third parties remain your separate property in your prenup.
6. Protect stay-at-home parents
It’s a common misconception that prenups only benefit the wealthier partner. It’s simply not true! Prenups also protect the lesser-earning spouse. How? In many ways! Here are just a few ways a stay-at-home parent (or lesser-earning spouse) can be protected through a prenup:
- Lump sum payment (a sum of money paid upon divorce from the higher earner to the stay-at-home parent)
- Primary residence clause (ensuring the stay-at-home parent is allowed to remain in the marital home during and after the divorce)
- Ensuring alimony stays in (you can always negotiate this and have it limited in a certain way but still there)
7. Protect confidentiality
If you don’t want your spouse or future ex-spouse to talk about things like finances, your personal life, or the prenup itself, then a confidentiality clause may be for you. It’s sort of like an NDA but in a prenup. You can make sure your spouse keeps quiet about your personal information during the marriage and even after the divorce. Why? Some people want to include this clause to protect their business information, family wealth information, and/or if they are a public figure.
8. Protect pets
Pets are family nowadays, and it only makes sense to ensure your pet stays with you, even in the event of a divorce. We like to call it a “petnup” because you can make sure to list out which spouse gets custody and financial responsibility of the pets in the prenup.
Without a prenup, your pets could be distributed as if they were personal property without feelings, emotions, and attachments. So, getting a “petnup” is often a frequent request from pet parents.
9. Protect social media image
We live in the social media age where everything is online: the good, the bad, and the ugly. Some people don’t love that idea. So, they opt in for a social media image clause which helps protect against disparaging their image online. In other words, you can put a clause in your prenup that says neither spouse may post disrespectful or humiliating content online. And if they do, they pay you a fine! How’s that for protecting your reputation!?
10. Ensure life insurance coverage
Albeit a morbid topic, it’s an important one! You can include a life insurance clause in your prenup that requires your spouse to maintain life insurance, with you as the beneficiary, for a certain death benefit amount. This doesn’t automatically create a life insurance policy; you still have to go out and actually purchase one through an insurance provider. This clause simply mandates that you do so.
Why would someone want this? For peace of mind in the worst-case scenario that their spouse passes away. This may be especially important for those with spouses that have high-risk jobs, such as in the military.
11. Ensure health insurance coverage
Adding a health insurance clause to your prenup essentially says, “if one spouse is providing health insurance during the marriage, they will continue to do so after the marriage ends.” Of course, this is subject to the rules of the specific insurance provider and will only go into effect if it’s allowed by them.
This can be especially beneficial for stay-at-home parents or folks who do not work and rely on their spouses for health insurance.
12. Protect against attorney’s fees
You may include a clause that shifts the attorney’s fees from one spouse to the other for breaching the prenup. This means that if one spouse doesn’t follow the terms of the prenup, they will be responsible for the other spouse’s attorney’s fees. For example, let’s say your spouse files for divorce and argues that they should get X when the prenup says Y. This goes against the terms of the prenup (hence, they’re in breach), and the attorney’s fees may be shifted in the situation with a clause that says so (and is enforceable).
13. Require mediation before litigation
Mediation is a type of alternative dispute resolution. It’s simply an “alternative” to resolving divorce issues in a traditional court setting. Mediation is a process of hiring a neutral third-party mediator who will help facilitate conversation and help the spouses come to an agreement without a judge. A mediator doesn’t make a final decision; they simply help the spouses come to an agreement through communication.
Why would someone want this clause? Mediation is much cheaper and less stressful than a regular litigated divorce.
14. Protect children from another relationship
If you’re on your second marriage or you’re on your first and simply have children from another relationship, you may be interested in protecting your kids’ future inheritance. There are two potential ways your children can lose out on your assets, through death and through a divorce.
Let’s talk about divorce first. Making sure that you have a prenup that lists out your separate assets as yours and yours alone is critical. For example, if you get a divorce and you don’t have a prenup, some of your assets may be apportioned to your spouse (who isn’t your children’s parent). This means, ultimately, your kids lose out on your money because some of it is going to your ex.
Let’s talk about death (fun!). Prenups can also include death clauses which ensure that your prenup stays intact even in the event that you die–meaning that your “stuff” will pass through your estate (i.e., your will). That also means you must actually have a will in place to make sure this works.
15. Set expectations for the marriage
Prenups are also an excellent tool to lay out expectations for one another. For example, if one spouse plans on being the stay-at-home parent and the other plans on being the breadwinner, or setting out budgets, expense plans, and any other financial expectations you have of one another.
16. Facilitate transparency and openness about finances and life goals
Another great purpose for a prenup is to open up the conversation about finances and life goals. There is a part of the prenup process in which both spouses are required to share details of their finances. You cannot skimp here; you must show everything (or you risk getting your prenup invalidated). So, it goes without saying that this opens the door for transparency in your relationship about all things finance.
On top of that, you two can start talking about life goals. Retirement, kids, savings goals, investment goals, etc. These things must be talked about during the prenup process in order to ensure the two of you are on the same page.
A note on the timing of a prenup
If you are wondering quite literally *when* you should consider a prenup, as in, at what point in time: you should be considering a prenup three to six months before the wedding day. This should give you enough time to discuss, negotiate, draft, and finalize your prenup.
Remember, your prenup can actually be invalidated if it is signed too close to the wedding day. For example, in California, there is something called the 7-day rule, which mandates seven calendar days between the final draft of the prenup and the signing. Other states have other requirements, such as requiring the prenup to be signed 30 days before the wedding.
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]