A prenuptial agreement (often referred to as a prenup for short) is a written contract between two people before they get married. Other legal terms used to refer to the same contract include antenuptial agreement or contract and premarital agreement or contract. Couples use these contracts to define what each person’s property rights are upon marriage dissolution, as well as how they will divide debts.
Although most people assume that these documents are only for the rich, they also have purposes that are practical for couples of average means. Here is a short guide to how a prenuptial agreement can be useful, as well as other issues that should be considered before deciding to get one.
When most people think of prenups, they think of a spouse who has significant property that want to protect in case of divorce. And while that is one reason that a couple might draft a prenup, it is not the only reason. Prenups are now a useful tool for those entering into second marriages and those starting blended families.
An engaged couple with children from prior marriages or relationships can use a prenup to lay out what will happen to some of their property when they die. This way, they can pass on separate property to their children but also provide for their spouse. Without a prenup or a proper estate plan, the surviving spouse might have the legal right to claim a much larger portion of their spouse’s property, whether or not that’s what they wanted or intended.
Some couples use prenups to avoid significant legal entanglements if a divorce happens. If they can spell out what property is going to which spouse and what debts and other financial obligations like alimony, they can make a stressful event like marriage dissolution a little bit easier. There are certain issues that cannot be in a prenup, though, like child support or custody arrangements and spousal duties or daily chores. Be sure to talk to an attorney to clarify what can and cannot be put in a prenup in your state.
Although talking about prenuptial agreements can be hard or awkward for a couple, there is a reason that they exist, which is to help legally protect each spouse in the event something goes wrong. The most obvious benefit to a prenup is property protection. If they spouses can agree what property will belong to each during an amicable place in their relationship, it helps avoid drama and significant legal fees in the future. As stated above, it also allows blended families to protect property on behalf of certain family members so that they are not taken advantage of in the future.
A prenup can also establish how responsibility for debts will be divided between the spouses, and help protect each from issues with creditors. And because a prenup is a contract, it can be tailored to each couple’s specific and unique situation. Spouses can feel free to include special and specific provision pertinent to their relationship and legal and financial situations.
While there are many pros to getting a prenup done, that does not mean that there aren’t drawbacks as well. From a purely emotional standpoint, couples may feel that even approaching the idea of a prenup means that there is trust issues between them, or that one party expects there to be in future.
Bringing up the issue of a prenup can be awkward. Also, for some couples a prenup may be entirely unnecessary. There are legal issues like child support, child custody, and others that must be addressed through other legal proceedings and cannot be decided through a prenup. In addition, most of the time a prenup is not particularly helpful for younger couples who haven’t acquired a significant amount of property yet.
In the past, courts tended to view prenuptial agreements with skepticism, because many tended to involve a legal waiver of financial and legal benefits by the spouse in the weaker financial position.
Now, as blended families become more common and women have more equal earning potential, a court is more likely to uphold a prenup. If the agreement is understandable and both parties had the opportunity to negotiate with legal help if necessary, a prenup can be an important legal tool.
A prenup is at its heart a contractual agreement, just like many other legal documents. If you need help drafting or understanding terms in prenup negotiations, obtaining the services of a family attorney can be a big help. It is important to protect each spouse’s legal rights, and if necessary, have someone advocate for their specific interests.