Prenups 101: Back to Basics!

After working on a variety prenups for all different types of clients over the years, I’ve realized that no matter the situation, everyone can benefit from some basic information on prenuptial agreements. I wanted to provide answers to some of the more commonly-asked questions I receive from clients.

1. What exactly is a prenup?

I can’t tell you how many times someone calls me about a prenup but they aren’t 100% sure what a prenup actually is. A prenup, or prenuptial agreement as the formal name, is a legal document that provides a framework for the distribution of assets and debt in the event of the marriage ending as well as post-marriage support – if the parties wish to address that issue. It may also spell out the rights and responsibilities of each party during the marriage, and what happens in the event of a spouse’s death. While the concept of a legal document can be intimidating, a prenup can (and will) be tailored to your specific situation with your partner.

2. Why do I need to worry about a prenup right now?

The time between the engagement and wedding is filled with a lot of planning and excitement. Often, the last thing people want to deal with is a lengthy legal agreement. People tend to feel that the prenup can wait – because the agreement is specifically about the couple, they feel it won’t take too much to get it done. However, the thought process and conversations leading up to executing a prenup can take time.. Waiting until the last minute can not only be stressful, but it can also affect whether or not the agreement is actually valid.

3. Doesn’t a prenup mean that my fiancé and I don’t trust each other?

One of the biggest misconceptions for prenups (in my experience) is that they are only used when a couple doesn’t trust each other. While I can’t speak for everyone, I can tell you that prenups are a valuable tool in building trust for couples. The prenup process requires each person to disclose important information, and by availing themselves to the process, a couple may find that getting a prenup strengthens their bond.

4. Why do I need an attorney to draft it? Can’t we do it ourselves?

A prenup is all about you, your partner, and your relationship. However, just because it’s specific to you does not mean that you should do it yourself! You want to make sure that your agreement is durable and enforceable. Courts tend to look at the context of how a prenup was drafted, presented to the other partner, whether there was appropriate financial disclosure and whether each person was represented by independent counsel.

5. What will my prenup include?

Prenups can be uniquely tailored to suit your own relationship, so there’s no real simple answer to this question. However, there are definitely some elements, which are generally included in a prenup. In my practice, I use a checklist of major issues to consider and then discuss whether there are unique issues that are important to my client. A main topic would be the distribution of assets in the event of a divorce or death of a spouse. How will property be split up between you and your partner? The prenup can spell out exactly how the distribution should work. Additionally, your prenup can include provisions for support, in the event of a divorce, the marriage lifestyle and finances. This could mean defining each party’s role in paying household and living expenses, or could even mean social media elements, such as what type of content can be posted. The important thing to remember is that no two prenups will be the same – you and your partner will be able to tailor the agreement.

6. What if my fiancé and I want to change the prenup after we’re married?

This is a tough one because although it is possible to modify an existing prenup, it is usually better to go into the process with the goal (and understanding) that the final product will remain final. However, sometimes life can throw a curveball – perhaps you inherit a large sum of money that was unanticipated at the time of drafting or maybe you adopted a family pet. As long as you both agree to the change, your attorney can assist you with modifying the agreement in order to reflect any new clauses. There is also the option to set an “expiration date” on the prenup (sometimes referred to as a “sunset clause”). Some couples would like to have an agreement in place only for a set number of years after the wedding. Once the expiration date kicks in, the agreement is no longer valid. While this may be a good option for some couples, it is always smart to review the practical impact of proposed terms and the entire agreement with your attorney to ensure that it meets your needs and intentions.

7. What if we decide we want a prenup after we’re married?

A prenup literally means before the marriage, so once you’re married, a prenup is off the table. However, you and your partner can opt for a postnuptial agreement. The premise of the postnup is generally the same, but couples often have different reasons for wanting the postnup. A postnup can be useful in the same ways as a prenup – to agree on the distribution of property upon separation, divorce or death even though there are no plans to separate or divorce. It can also be used to address other issues such as support and/or allocation of debt.

Understanding the basics of prenups and how they work is the first step of the process. The important thing to know is that a prenup is a legal agreement and that the agreement is very much unique to your own relationship. While people may have their own thoughts and opinions on the usefulness or character of a prenup, only you and your partner can really decide whether a prenup is right for you.