Let's Talk About Prenuptial Agreements

A prenuptial agreement, or a prenup, also sometimes called a premarital agreement, is a contract between two parties made in contemplation of marriage. They’re a mix of family law and estate planning, so they’re one of my favorite tools. If you're living together, but not planning a wedding just yet you should consider a cohabitation agreement. 

There are a lot of misconceptions about prenups, including that they’re only for the wealthy or for people who doubt their marriage will stand the test of time. Prenups serve a wide range of purposes, such as protecting both spouses’ property rights, avoiding costly litigation in the event of a divorce, and describing how property will be distributed in the event of a death of a spouse. 

The thing I love most about prenups is control. In a lot of divorces, you have already given up control, but with a prenup you have the opportunity to approach those same issues in advance, with a clear head. It might not feel like something to think about when you are picking out a venue and looking at flowers, but that is the best time to think about – and make sure you have talked about – what you both want to happen with your assets in the event of death or divorce. In all my year of practice I have learned that couples do not have the conversations they should when they should. Prenups help you start off on the right foot, with a full and fair disclosure of all assets and liabilities of both parties. Think of the deep conversations about your future as a couple that can flow from there. 

What can prenuptial agreements address? 

Prenups address property division and other specific concerns in the event of a divorce and/or death. They can (and should) identify assets and debts so you can determine what you want to be jointly held marital property and what you want to remain separate property. Prenups are helpful for business owners, professionals, people that own real estate or valuable collectibles or heirlooms, family trusts, investments, and any other significant assets. These financial situations are common in second and third marriages. Prenups are also helpful when one party has significant debt, such as student loans, credit cards, or medical debt when entering the marriage to ensure that spouse maintains financial responsibility for their debts.

Spousal support also known as maintenance or alimony can also be addressed in your prenuptial agreement. Prenuptial agreements can: waive a spouse’s right to receive maintenance entirely, determine the amount of maintenance a spouse is awarded and duration of payments, place conditions on receiving maintenance, or limit the amount or duration of maintenance payments.

Maintenance provisions may run into enforcement issues due to unforeseen circumstances that may arise, such as disability or limited earning capacity after foregoing career advancement for the other spouse’s career or child rearing responsibilities making enforcement unconscionable or incredibly unfair. 

What can't prenuptial agreements address?

Prenuptial agreements cannot address child support or parenting time and decision making. They also cannot contain any provisions that are unconscionable or incredibly unfair or illegal. Other than that, prenups are contracts, and you can contract to what makes sense in your situation. Some couples include language confirm their children’s religious upbringing or rights to family pets. Using an experienced attorney to help draft your agreement will help ensure whatever provisions you decide to include in your agreement will be legally enforceable. 

It can be intimidating to think about discussing what will happen in the event of a divorce or death with your future spouse, but not having the discussion does not make it any less likely to happen. All marriages eventually come to an end and preparation now will help save you both time, money, and energy in the long run giving you an opening to explore some deeper conversations now.

If you're ready to talk about Prenuptial Agreements or if you have received one from your spouse to be and are seeking representation, contact my office to schedule your free 15 minute phone call today.