What is a prenup?
Consider this your complete guide!
Here we will answer some popular questions that surround prenuptial agreements (otherwise known as a ‘Prenup’ or ‘premarital agreement’):
What exactly is a prenup?
Colloquially referred to as a ‘prenup,’ this written premarital agreement is a private contract made between two individuals planning to marry. Being premarital means you set out and agree the terms before you marry the love of your life. The contract lists all the terms you agree to abide by in the event of a divorce, and details the assets that you hold as a couple or individually. You can use a prenup as a sort of financial planning tool, allowing you and your future spouse to discuss how assets and debt will be managed during the marriage, too. The terms of a prenup set out what is to be done with certain assets and who is entitled to what.
What’s the purpose of a prenup?
The very first prenups date back to ancient Egypt. They were verbal or written contracts establishing the property that each spouse would bring to the marriage. In addition, they were used to establish the bride’s dowry; namely, the price that a groom would pay the bride’s family in exchange for marrying her (ugh).
Today, couples enter into prenups to override the default divorce laws that govern marital property division and spousal support. Each state has it’s own divorce laws, and these default rules govern the way courts will divide property in the event of a divorce, include bank accounts, investments, and more. Prenups allow couples to contract around default state law, which in turn allows couples to decide what division should look like based on what feels right for them.
Is a prenup good or bad?
Well, you know how we are going to answer this… prenups are good! Some believe that this answer depends on what side of the prenup you find yourself. However, we disagree- prenups are helpful for most couples, and in fact can also protect the less wealthy party.
Overall, prenups can help protect your financial and business interests should the worst case scenario happen. (Almost) more importantly, prenups also help couples come to an agreement on how to save or spend money during their marriage, an understanding on how assets will be held, how inheritance will be considered (marital or separate property?), and whether spousal support is something that should be considered in the event of a divorce.
Who benefits from a prenup?
Both of you!! The first thing to remember is that prenups are not just for the wealthy. Generally, prenups are a good idea for anyone with earning potential, assets, debt or potential future inheritance. Do you own a business or are you a partner in a business? Get a prenup! Are you entering into a second marriage? You should seriously consider one. Prenuptial agreements are an extremely useful way to take care of financial planning matters when children from a prior relationship are in the picture. Let’s put it this way – while not every couple needs one, almost every couple will benefit from a prenup, because they encourage mutual problem-solving and financial planning that will ultimately equip a couple to decide on what is important to them in a relationship.
Do prenups cost both spouses money?
The can – but most couples agree that they each pay for themselves. The cost of a prenuptial agreement depends on many factors that can include the complexity of your assets as well as what clauses you want to include. Per person, attorney drafted prenups tend to range in the $1,200 to $2,400 bracket. Typical retainers are around $2,500 each (if things are uncomplicated), whereas more complex assets or negotiations can bring costs up to $7,500 to $10,000 each. Remember, lawyers charge by the hour, and many charge in 6 minute increments. The cost adds up quickly. Other factors include where you live, the complexity, the experience or reputation of the lawyer drafting the agreement (which affects their fees), and your assets.
HelloPrenup combines technology and law to allow couples to create their prenup agreement in hours instead of months, and for a fraction of the cost of the traditional approach, like using two attorneys. Instead, utilizing our platform, couples can create and negotiate their prenup as a team. And, if you want legal advice? You can take your draft to an attorney!
What should you ask for in a prenup?
Keeping in mind the bespoke nature of a prenup, one size does not fit all. However, there are some pretty standard considerations you should seek to address. These may include:
Property you bring into your marriage and want to remain yours and yours alone, is considered pre-marital property. If you bought a home before the marriage and you want that home to remain yours, safeguard it with a prenup. Classify it as your premarital property!
Sometimes called spousal support, this is the legal obligation to provide financial support upon marital separation or divorce. Now, one could make the argument that alimony has been technically gender neutral since the early 1970s, and therefore men, too, could be greatly affected by an alimony clause in a prenup. But the reality persists that 97% of alimony recipients are women. So, again you ask, how does alimony relate to a prenup? And… isn’t a prenup generally bad for the lower earning spouse? That may be the perception, but we are here to tell you, that is not accurate. A prenuptial agreement allows couples to contract around their state’s divorce laws and come up with an agreement that is right for them. This means that although, yes, a prenuptial agreement can deprive a party of rights that they would otherwise receive under the state law had they not entered into a prenuptial agreement, like a waiver of alimony clause, but it also means the opposite. Want to create your own financial arrangement, that perhaps is more advantageous than the typical alimony calculation, that you feel is more fair for you or your spouse if you both agree that spouse may need to stay home and raise the children at some point? You can do that!
Spouses may receive certain gifts from family members during their marriage, ranging from cash to a car to jewelry. Prenups can group all gifts belonging to one of the parties and classify those gifts as separate property and not subject to division in the future.
Infidelity clauses are becoming more and more popular these days, but beware- they are not always enforceable. Many infidelity clauses impose a financial penalty for cheating. Although these clauses are not always enforced by courts, sometimes that is not the point. Instead, a cheating clause will act as an emotional understanding between the couple, ensuring they are on the same page.
Does cheating void a prenup?
Adultery or abuse does not invalidate a prenuptial agreement unless the agreement specifically states so. While you can include an infidelity clause, they are not always enforceable. Notably, in the court case of Diosdado v. Diosdado (2002) a Californian trial court found that an infidelity clause was not enforceable because it was contrary to the public policy underlying California’s no-fault divorce laws. However, these clauses are still often requested and included.
Does a prenup protect future earnings?
This is possible, but is less straight-forward than some other provisions. Prenups can protect future earnings if those earnings are explicitly set out as separate property in the agreement, and not commingled as marital property during the marriage.
Should I be offended by a prenup?
No! Of course not. Many people believe that it is unromantic to talk about money. Others believe a prenup disincentives couples from taking marriage seriously. We disagree. Honesty and open communication is the bedrock of a healthy and happy relationship, and in achieving this level of transparency, you need to discuss financial matters with each other. You should not be offended if the idea of a prenup is brought up. Sensible and emotionally mature couples must consider the realities of divorce, and the fact that the longest marriages require consistent communication around money.
How long before a wedding should you get a prenup?
The process for getting your prenup should ideally be started (at least) three months in advance of your wedding. Why? You don’t want to spring the idea of a prenup on your fiancé last minute… that’s just rude! Many people do not get around to having THE convo or starting the process and leave it until too close to the wedding, which leads to a lot of stress. Don’t wait until the last minute!
Are prenups a good idea?
Prenups follow from an adult conversation that is open, honest, and emotionally mature. There are rational reasons as to why you may want a prenuptial agreement. A common belief is that a prenup is much like an insurance policy. The prenup is essentially insurance and like any insurance policy you should always be covered as you never know what may happen. Here are some reasons why having a signed prenuptial agreement is a good idea:
- The ability to make decisions yourselves rather than having a judge or state law decide for you.
- Protection from the other’s debt.
- Collaborating on terms together, like the team that you are!
- Lower cost of divorce in the future
- Established plan for spousal support
- Jointly deciding on a property division arrangement.
- Understanding of how property is owned – whether it is separate or marital property
- Understanding of what happens to inheritance, if either of you are to receive inheritance
So, to answer the question; yes, prenups are a good idea and a wise investment. It takes the power away from outside parties in making decisions for your life that you may not agree with. If drafted fairly and properly, both parties win.
How do you avoid a prenup?
You can simply not have one drafted and take your chances. One alternative that people often think of is a ‘trust’. A legal trust is a structure to hold the individual’s property subject to certain duties for the benefit of others. Trusts may be used to protect inheritance or family assets and they offer asset protection in the event of divorce; namely, the money or property has been placed in trust. However, trusts are complex matters, and in many states, the fact that you are a beneficiary of a trusts can be brought into divorce proceedings. We are not saying to not create a trust, but what we are saying is that don’t forfeit a prenup for a trust with the misconception that a trust is easier or more reliable. Prenups and trusts are two very different things.
Can a prenup be ‘broken’?
Any contract can be invalidated if certain requirements are present or not present. For example, if a prenup was signed under duress then it cannot be enforced. What is duress? The most dramatic (but clear!) example is putting a gun to someone’s head and saying “sign on the dotted line!” Certainly, that person did not sign that contract voluntarily- they had a gun to their head! But, the conditions don’t have to be that egregious to invalidate a contract – especially when you are dealing with prenups. Other issues that can invalidate a prenup include missing signatures on the document, or most commonly in the land of prenups, inadequate or incomplete financial disclosure. So, how do you know what the general guidelines are? Well, this can get confusing- each state has its own guidelines. 28 states now subscribe to the the Uniform Prenuptial Agreement Act (UPAA) and have adopted it as a general guideline to govern the enforceability of prenup agreements in those states.
What are (some of) the pros of a prenuptial agreement?
- Prenups allow you the opportunity to discuss your dreams, desires and goals for your marriage. A prenup cannot govern how often (or how little…) you are required to see your in-laws each year, but having that conversation can certainly be a part of this discussion, among many others, while talking about your prenup. You can cover non-financial lifestyle details by way of talking about whether or not alimony should be waived. Like, does one of you plan to stay home and raise the children? If one of you does leave their career for a few years, what happens financially to that spouse’s interest in the assets or alimony? This is really important to think about and gets into the gender wealth gap conversation.
- Make sure you are on the same page. As we love to say, “you are starting your life together… make sure you are on the same page.” A prenuptial agreement allows you to decide what assets are premarital, what should be marital assets, and what should happen to inheritance. Should it be marital, or remain separate? You decide. These conversations are essential to a healthy, happy and long marriage.
- Second marriages will greatly benefit from a prenup. Prenups protect the financial interests of individuals in a marriage, and this can be especially true when they get married older, or as a second marriage. A prenup for a second marriage provides a layer of protection by allowing couples to ensure their premarital assets that should be reserved for the benefit of their separate children, do not become marital or community property. Check out our article on a Second Marriage survivor’s story and why you need a prenup.
- Spousal Support and Alimony. You can limit or waive the amount of spousal support that would otherwise be required if you did not have a prenup. State laws or guidelines, which very greatly, dictate the factors to be considered and calculation of alimony or spousal support. In a prenup, you have the power to decide whether or not alimony will be paid!
- Protect your business. A prenuptial agreement allows you to protect your business from being subject to the involvement or control of the other spouse in a divorce. Ask Jeff Bezos who has learned this the hard way.
- Can you really put a price on peace of mind? Maybe. How does $599 sound? #KiddingNotKidding. The average prenup will cost about $2,500 per person if you hire an attorney to negotiate and draft your agreement. HelloPrenup offers a prenuptial agreement at $599. And, if you want to hire an attorney to assist with that draft? Easy peasy! Just send them the easily downloaded word doc.
What could a prenup include?
Well first, you both need to fill out a financial schedule, disclosing your finances, including assets and debts. Then, you will have the option of considering the following to include…
Marital vs Separate property.
A prenup allows you to decide what you want to be considered separate property vs what you want to consider marital property. Separate property often includes assets spouses owned before getting married or assets which were gifted or inherited. In general, a prenup can determine how marital property is divided and how separate property is treated.
Protections against the debts of the other spouse.
Without a valid prenup, you could be liable for your spouse’s debt. This is a hot button topic for couples marrying who have student debt (doesn’t almost everyone?) Limiting your debt liability, instead of having each spouse owe half of everything, including the debt, can substantially limit the stress on a relationship.
Waivers of alimony.
Usually the lower-earning spouse is entitled to alimony from the higher-earning spouse. Alimony and spousal support are calculated depending on state law.
Ensure that your children are provided for if you are entering into a second marriage
Those children from any previous relationships will certainly be a big part of your new family, so make sure to plan for how assets that are intended to remain with those children should be held (ie. separate property).
If you share a pet or pets, then it’s worth thinking about what will happen to them as you draw up your prenuptial agreement. In the event of a divorce, will one of you keep your pet? Will it depend on your living situation or income at the time of separation? This issue can become remarkably fraught and is often overlooked.
A sunset clause is a creative way for your prenup to expire at a certain date, and can ease tension when discussing the provisions of a prenup.
What is not included in the prenup?
There are things that you cannot include in a prenup:
- Child support. Child support is dictated by state laws or guidelines that provide for a specific calculation. Each state is different. Any provision that attempts to control or limit the amount of child support will not be valid.
- Child custody. This may not be included in your prenup because the rights of children cannot be contracted away in a prenuptial agreement.
- Tasks. Provisions that delegate daily tasks or spousal duties that are not financial in nature may not be included. So, no, you cannot include provisions that require your spouse to have sexual relations with you a certain number of times a week, or require that they remain under a certain weight. Celebrity lifestyle clauses are synonymous with these provisions, but we wouldn’t recommend including them as they will not be enforced!
- Provisions that deprive a spouse of all assets and income, and therefore render them dependent on public assistance after a divorce are against public policy and not enforced.
- Incentives. Prenuptial agreements cannot encourage divorce, such as giving a spouse a monetary incentive to get divorced.
Are marriages with prenups more likely to fail?
NO! In fact, quite the opposite. One interesting statistic is 64% of divorce attorneys say that they have seen an increase in prenuptial agreements in the last four years. Also, 46% of divorce attorneys noted they’ve noticed a dramatic increase in the number of women who have initiated the requests for a prenup. Given that approximately 50% of marriages end in divorce, it seems like people are becoming more realistic about the to the idea of a prenup.