Dos and Don’ts of Creating a Prenuptial Agreement

wedding-322034_640Most people planning to get married don’t know enough about prenuptial agreements. No, you don’t want to get divorced, but that doesn’t mean you shouldn’t understand how the prenup works.

What Is It?

A prenuptial agreement, or premarital agreement, is a contract that sets the terms of property rights during marriage. The purpose is to establish rights before the state does it for you. There are a lot of misconceptions about these types of agreements, however.

Prenups aren’t just for the wealthy, although this is the common perception. The purpose of a prenup is to protect both individual’s premarital assets and property, protect a spouse from assuming the debts of the other if they divorce, determine how property should be passed at death, clarify financial rights and responsibilities during the marriage, and avoid disputes if a divorce does happen.

Prenups save spouses money in the long-run, and act as a defense mechanism in the event a spouse dies or decides that they no longer want to be married. Family law attorneys sometimes recommend them to couples before they get married because they dramatically reduce the complication and cost of a divorce or separation.

Is It Right For You?

Sit down with your spouse-to-be and talk about it.

If you don’t get a prenup, your state sets your property rights for you, and a series of family laws determines how property is handled during and after a marriage. In most states, this means splitting property 50/50, allowing both spouses to have equitable rights in property upon the death of the other spouse, share debts acquired during the marriage, and shared responsibilities in managing property that was purchased during the marriage.

In some cases, prenuptial agreements can also outline the procedures for shares of ownership in a business, if you own a business.

To determine is a prenup is right for you, you’ll want to sit down and talk with your spouse about the benefits and disadvantages of having one. Remember, a prenuptial agreement is about property rights, not romanticism.

Why Do It?

There are many benefits to having a prenup, including written documentation of each spouse’s separate property, elimination of court rulings over property distribution at death or during a divorce, a clear distinction between marital and community property, documentation of special arrangements between you and your spouse, and clear delineation of debts and financial responsibilities after a marriage.

Since many marriages end because of disputes over money or a conflict in evolving personal values, having a prenup may be your best defense later against your spouse if he or she changes and decides to leave or if you grow apart and the unthinkable happens.

Why Not Do It?

The most common objection to a prenuptial agreement is the notion that it’s not romantic. If your spouse objects (or if you feel uneasy about signing one), usually the problem stems from thinking that a prenup is a document that will dull the romanticism in your relationship in some way.

Also, the timing might not “be right” for a prenup.

You might be at a point where you don’t want to introduce an element of “doubt” into the marriage, and for many that’s what a prenup is.

What You Can and Cannot Include In A Prenup

Most property issues can be sorted out using a prenuptial agreement. Each state has its own separate laws, however, that govern what types of property constitute communal property and separate property.

One major clause that’s included in prenups is one that protects one spouse from another’s debts. Also, provisions for children from a previous marriage may be included in a prenup. If you want to designate property to stay in the family, this can also be included.

For example, if your mother gave you fine china that was passed down from a previous generation, she may have meant for it to stay with you if you ever split from your wife or husband.

A prenup makes sure that’s what happens. Otherwise, the dishes might be split evenly between you and your spouse or lost entirely.

However, as broad as a prenup may be, it cannot include anything illegal, it cannot include provisions concerning child support or custody, you cannot waive your right to alimony, make rules about personal matters (as opposed to financial matters), and it cannot encourage divorce.

In general, nothing personal must be included in the prenup, or a judge will likely consider it an invalid contract and strike it down.

Rebecca Long Okura is a graduate of the Georgetown University Law Center, and started her own family law firm in 2004. She is also a trained domestics dispute mediator.

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