A prenuptial agreement is a legal contract made before marriage that protects a couple in case of a divorce or death of a spouse. It may also be called a prenup or premarital agreement.
A prenup explains how to handle financial issues if the marriage ends. For example, it may list how to distribute your marital property, debts, or estate.
A prenup can address almost any financial matter. For example, a prenup can be used to:
Protect a spouse from the debts of the other spouse. If one individual has acquired significant debt before the marriage, your agreement can make sure that the spouse isn’t liable for any of the debt once the marriage is over.
Protect a spouse’s premarital assets. A prenup can protect premarital assets by keeping them separate from any assets that might be shared with a future spouse. For example, a prized heirloom or retirement account might be specified as ‘separate.’
Simplify the property division process. A prenup can sometimes reduce conflict and arguments if you later divorce by specifying how property will be divided ahead of time.
Modify alimony payments. A prenup might limit the amount of alimony a particular spouse is entitled to receive after a divorce, particularly if one spouse is considerably more wealthy.
Protect a business. A prenup can protect a personal or family business and its assets. It might specify separate ownership, or limit the ability of a spouse to share in the profits.
Support an estate plan. A prenup can protect inheritances, outline how certain property will be distributed after death, and explain what will happen if one spouse outlives the other.
These are just some of the possible ways a prenup can be used to clarify financial matters. If you’re considering a prenup, it’s a good idea to sit down and make a list of the issues you think need to be addressed, so your agreement can be tailored to them.
What a prenup cannot do
There are 3 main things that a prenup cannot do:
Address non-financial matters. For example, you cannot specify which spouse will do various chores in a prenup.
Modify child-related issues in divorce. This includes waiving your rights related to child custody, child support, and visitation.
Include any terms that are unfair to one spouse. If a judge believes that any of the terms in your agreement are especially unfair to one party, your agreement may not be enforceable.
Making sure your agreement is enforceable
State laws vary in what they consider a valid prenup. In California, for example, both parties are advised to have their own lawyers to review the agreement before signing. Be certain to know the laws of the state in which you’re getting married before you create the prenuptial agreement.
A valid prenup should meet the following criteria:
Each spouse was represented by their own attorney.
The couple had at least 7 days to review the completed agreement before signing.
The couple was aware of each other’s property and finances before signing the agreement.
Both spouses signed the agreement voluntarily.
If a judge finds your agreement to be invalid, some or all of the terms may be dismissed. It’s always advisable to meet with an experienced and local prenuptial lawyer before signing a prenuptial agreement.