Divorce | Family
What Should Be in a Prenuptial Agreement?
by Philip Ahn, Attorney
A prenuptial agreement is a legal contract created before marriage to determine the division of property and assets should there be a divorce. It protects you and your future spouse from unanticipated financial risk should you divorce. Here’s what to include in your prenup to protect your interests.
Things a Prenup Should Cover
One of the best things about a prenuptial agreement is that it can be tailored to your needs as a married couple.
Your prenup should include the premarital assets each spouse owns and how they’re treated in case of a divorce. For instance, you can agree that any property each one owns before marriage won’t be split with the other spouse in case of a divorce.
If either partner has any significant debts before marriage, a relevant clause in your prenup can protect the other spouse from being exposed to this debt. This is in case the marriage dissolves or either spouse passes away.
In most states, assets acquired during the marriage have equal ownership by each spouse. In the case of a divorce, these marital assets are equally divided between the two partners. However, you may want to keep your marital assets separate. You can do this by including a dedicated clause on marital assets in your prenuptial agreement, spelling out how those assets will be divided.
Just as with marital assets, debts acquired during the marriage are generally considered the responsibility of both spouses. Instructions on how marital debts will be divided must be spelled out in your prenuptial agreement to keep marital debts separate.
If either partner is a business owner, your prenup should include a clause on what happens to the business owner’s company assets in the event of a divorce. Including a relevant clause in your prenuptial agreement can protect your company from being sold off and shared with your former spouse.
In most cases, contributions to pension accounts are shared between both spouses. However, if you want to keep spousal retirement accounts separate, you can designate how they should be divided in your prenuptial agreement.
If one of the spouses has given up their job to care for the family or if their income is less than the other spouse, they may be eligible for alimony payments after divorce. Your prenup agreement can include stipulations on how these payments will be dispersed.
A lot of prenuptial agreements include a sunset clause. This clause voids the prenuptial agreement when a specific amount of time during the marriage has passed. For instance, you can add a stipulation to your prenup contract that makes it invalid after five years. In this case, when five years have passed, your assets will be divided according to state laws in case of a divorce.
An infidelity clause says that a spouse who commits adultery gives up financial benefits upon divorce. Their legality is questionable, and some states reject their enforceability, but that doesn’t mean you can’t add it to your agreement.
A prenuptial agreement is a contract that you can tailor to your needs. This means that you can include a variety of clauses and stipulations that you find to be in your family‘s best interest. Other clauses often included in prenuptial agreements involve education, spending allowances, spousal gifts.
What’s Not Included in a Prenup?
Your prenup cannot include anything considered illegal in your state of domicile. When a clause is illegal, it invalidates the entire agreement. It is essential to be fully aware of the laws in your state and have your prenuptial agreement checked by a professional attorney.
Limitations on what your spouse should wear, how they should behave, or how house chores are handled typically have no place in your prenup. If you and your partner want to define specific duties and responsibilities for your marriage, you should do that with a separate document.
Ultimatums and Threats to Divorce
The terms in your prenuptial agreement shouldn’t encourage divorce or separation when your spouse doesn’t follow specific rules. It’s not a good practice to include stipulations in your prenup that are intended to “push” your partner to do something or not to do something to keep your marriage together.
Getting Started With Your Affordable Prenup
Some attorneys can charge for a whole expensive package of services related to drafting and negotiating a prenup.
Unbundled Legal Help can match you with a locally-licensed “unbundled” attorney who charges only for the tasks you need completed, like formalizing your existing prenuptial understanding. This reasonable approach can save you and your spouse thousands of dollars – for your wedding or honeymoon!