What Is a Prenuptial Agreement?

When you’re planning a wedding with your future spouse, the last thing you want to think about is a divorce. But it’s important to consider a possible separation. In the event of divorce, having a plan in place can simplify the process for everyone. A prenuptial agreement is a way for both you and your partner to to protect yourselves if you ever separate.

Having a prenup does not mean you will get a divorce. It’s just a planning tool. Prenuptial agreements and property laws vary by state. To find out more about prenuptial agreements in your state, talk to a family law attorney.

What Does a Prenup Do?

A valid prenuptial agreement is a legally binding contract between you and your soon-to-be spouse. These contracts establish your financial and property rights during a divorce. Prenup terms can include:

• Whether anyone will pay alimony and who will pay it
• How to divide your marital property
• Who is responsible for individual debts
• What property is community property or separate property
• Inheritance rights

For example, a standard provision in prenups is that each person will get to keep the assets and debts they had before the marriage.

Prenuptial agreements sometimes get a bad rap. Many couples have a difficult time talking about finances before they get married. However, financial disputes are a common source of marital division. These disputes can lead to divorce. Talking about finances and property with a prenup can give you valuable peace of mind and avoid an ugly divorce.

Prenups aren’t just for wealthy people. Anyone with independent property, business assets, or from a prior marriage can consider a prenup. Prenups only come into effect only if the couple decides to divorce. A prenuptial agreement doesn’t adversely affect couples who choose to stay married.

When Should You Consider a Prenup?

There are many examples of when a prenuptial agreement can help in case of divorce. For example, a prenup can protect your property rights. When a marriage ends, state law determines the division of property. States are generally divided into separate property and community property states. With a prenuptial agreement, you can decide what to do with your property instead of the state.

Spouses can decide what is marital property and what is separate property. By keeping property separate, you can make sure your personal property goes to family members and children. If you have children from a previous marriage, you want to make sure your children can inherit important family heirlooms. A lawyer can help you plan for how to handle real estate and significant assets with a prenuptial agreement.

A prenuptial agreement can determine what happens to debts taken on before the marriage. For example, suppose your fiancé comes into the marriage with significant student loan debt. A prenup could make it clear that they are responsible for that debt in the event of a divorce.

A prenup can reduce the time and expense of going through a divorce. An enforceable prenuptial agreement can reduce the costs of a divorce. There are fewer disputes because the prenup has already declared how to handle financial issues. Including provisions for spousal support or alimony in a prenuptial agreement will save time as well.

Protecting a Family Business

A family business is a valuable asset. Without a premarital agreement, a court could award some of your ownership rights in a family business to your ex-spouse. This can be bad for business and put the company at risk. A prenuptial agreement can protect your family business ownership.

Can a Prenup Determine Child Custody?

While there are many things prenups can decide in advance, most issues involving your children are not included. Prenups exist to protect financial assets, which your children are not. You and your spouse can’t commit to valid custody agreements through a prenuptial agreement. Child custody is generally determined at the time of separation or divorce in a way that protects your children’s best interests.

Even many financial matters regarding your children aren’t eligible to include in a prenup. For example, courts will generally not enforce any agreements on future child support payments in a prenup.

How Do I Get a Prenup?

Talking to your fiancé is the first step to getting a prenuptial agreement. This can be a delicate conversation for some people. However, a prenup can protect and benefit both parties. Even if you don’t end up signing a prenup, it’s important to have a discussion with someone who will share your property rights and debts.

A legal prenup is a written marital agreement document signed by both partners. State law differs on what is necessary to make a prenup enforceable in court. You have to voluntarily sign the prenup to make it enforceable. The agreement should also have each partner’s financial disclosures. Each spouse must have an opportunity to consult with legal counsel before signing.

What Is a Postnuptial Agreement?

A postnuptial agreement is like a prenup, but a couple makes a postnuptial agreement after they are already married. While postnuptial agreements are less common, there may be good reasons to sign one, such as an unexpected financial windfall after you get married. A postnuptial agreement can also allow you to make changes to an existing prenuptial agreement.

Talk to a Lawyer About a Prenuptial Agreement

A prenuptial agreement can affect your property rights after a divorce. Make sure you understand your rights and obligations before signing any legal document. To protect your rights, get legal advice before you sign a prenup. An experienced family law attorney can explain the benefits of a prenuptial agreement and make sure you can protect your property rights in a divorce.