Prenuptial agreements suffer a bad reputation, thanks to years of dramatic depictions in movies and TV shows. Usually, the person suggesting a “prenup” appears selfish, while the other partner is characterized as a victim of avarice whose trust has been shattered.
In reality, you can approach your prospective spouse with the idea of drafting a prenuptial agreement together, and leave all the dramatic gasping to the actors.
Prenuptial agreements have a long history, with the earliest evidence found in documents of ancient Egyptian and Hebrew civilizations.
Reflecting on the makeup of today’s modern families, prenuptial agreements make more sense than ever. The average age at which Americans get married for the first time has risen dramatically in the last 20 years.
According to the U.S Census Bureau, men getting married for the first time in 2020 had a median age of 30, and women getting married had a median age of 28.
With more years of earning and buying time, modern men and women amass more wealth before they tie the knot. It’s important to understand and protect these assets through a prenuptial agreement.
What is a prenuptial agreement?
A prenuptial agreement is a legal contract between spouses that delineates what will happen with their marital and non-marital assets at the time of divorce or death.
If a couple files for divorce, their prenuptial agreement offers a blueprint for how a family court judge should divide their property, financial accounts and other assets. It also includes an agreement between the couple for spousal support in the case of divorce.
A prenuptial agreement is created before a couple get married, only becoming valid when their legal union takes place. Because a prenuptial agreement is an important, binding legal document, couples benefit from an attorney’s assistance in drafting the terms.
Entering into a prenuptial agreement provides a sense of future predictability and consideration of both spouse’s interests. It’s a way to protect your financial assets, and most importantly the priorities in your life that those assets support, such as your children, your home and lifestyle.
A prenuptial agreement is a contract between two people planning to share their life together.
A prenuptial agreement is not an ultimatum issued from one partner to another.
A prenuptial agreement is a smart choice.
A prenuptial agreement is not a scandal.
A prenuptial agreement governs a couple’s own financial relationship in case of divorce.
A prenuptial agreement has no bearing on decisions related to child support or visitation.
A prenuptial agreement is a tool to improve clarity and communication with your partner.
A prenuptial agreement is not intended to drive a wedge between engaged couples.
A prenuptial agreement is often a simple document a couple develops with a mutual attorney.
A prenuptial agreement is rarely the product of an intense negotiation with opposing sides.
A prenuptial agreement only becomes active upon a couple’s legal marriage.
A prenuptial agreement does not protect against losses from a wedding that doesn’t happen.
Who needs a prenuptial agreement?
Everyone deserves the right to consider getting a prenuptial agreement, regardless of whether they believe their assets are “valuable enough” to protect.
It makes sense to consider a prenuptial agreement if you or your fiancé:
- owns assets, including a home, car, real estate or investments.
- carries significant debt.
- has children from a prior marriage.
- owns a business.
- is the only member of the couple with an income.
Another beneficial aspect of proceeding with a prenuptial agreement is the education gained in the process of drafting the terms.
To enter into a prenuptial agreement on sound legal ground, each person must disclose all assets and debts they hold prior to marriage. This provides both people with a clear picture of their shared financial situation, and their intentions for the future.
If a man has no intention of splitting his pre-marital stock investments in the case of divorce, a woman deserves to know that before getting married. If a woman doesn’t plan to sell her pre-marital family home in the case of divorce, a man deserves to know that.
During the process of drafting a prenuptial agreement, each member of the couple can get a clear picture of existing assets, and what their financial rights might be in case of divorce.
Merging two financial lives creates complexity, and while couples hope they’ll never need to use their prenuptial agreement, having one clarifies their intentions.
How do prenuptial agreements work?
To create a prenuptial agreement, a couple first consults with an attorney to determine what subjects need to be discussed and agreed upon.
The couple will decide together how to move forward, and while some choose not to use an attorney for their prenuptial agreement, consulting with a lawyer puts you on solid footing to begin the process.
The next step in creating a prenuptial agreement involves the couple disclosing their assets to one another, a process that is more formal than emotional. Some couples are well informed about one another’s bank accounts and real estate owned, while others have never delved into the topic.
Once they understand their mutual financial situation, the couple then share their vision of how assets could be fairly divided in case of divorce. Clarifying these expectations often brings a couple a greater understanding of one another — for better or worse, frankly.
If the couple’s financial expectations don’t line up, the process of creating a prenuptial agreement gives them an opportunity to align those visions.
In any marriage, couples face difficult conversations and compromises. If a relationship can’t withstand the discussion necessary to create a prenuptial agreement, it may be wise to rethink marriage plans.
When is a prenuptial agreement not valid?
According to prior precedent, there are a few situations in which a family court judge may find a prenuptial agreement invalid or inappropriate for enforcement when a couple gets divorced.
If one spouse didn’t have full knowledge of the breadth of their partner’s financial assets and obligations, a family court judge could invalidate the couple’s prenuptial agreement.
Also, a judge can determine a prenuptial agreement wasn’t fair or reasonable at the time it was drafted, and invalidate it on that basis. It may also be invalidated if the judge determines one spouse was coerced into signing the prenuptial agreement.
Courts have also protected people in cases when the terms they agreed to in a prenuptial agreement drafted years ago could leave them destitute in a divorce today. According to this case law, family court judges could invalidate or alter the terms of a prenuptial agreement if carrying out the original contract would leave one partner in poverty.
What is a postnuptial agreement?
Just as engaged couples may enter into a prenuptial agreement, married couples can draft and sign a postnuptial agreement. This legal document aims to offer the same protections as a prenuptial agreement, but couples discuss and agree on the terms while they’re already married.
Postnuptial agreements are available to couples who, in hindsight, would have pursued a prenuptial agreement before their union. However, postnuptial agreements are also available to long-married couples, who may find them helpful in salvaging their marriage.
Especially when finances have become a point of contention, couples can pursue a postnuptial agreement as a tool for reconciliation. Sometimes writing a legal agreement down on paper can put an end to verbal disagreements that have stretched on for years.
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