Prenuptial Agreements: What should your agreement cover?

Prenuptial agreements (“prenups”), much like relationships themselves, are not “one size fits all.” Each couple has a unique set of goals and issues to be addressed. The content of a prenup reflects these individual objectives. People hesitant about obtaining a prenup often conflate the idea with certain common misconceptions and opinions. One sentiment often brought up is the notion that prenups only prepare for divorce. However, the principal goal of a prenup is to clarify expectations about the couple’s future regardless of whether there is a divorce. I have written in the past about the benefits of prenups for all kinds of couples. A prenup can act as a platform for compromise, while allowing couples to be proactive about their future, the management of their assets, and the expectations for their lifestyle. Once a couple does decide to obtain a prenup, what should the agreement actually cover?

There are many options available to couples in regards to the structure of their prenup. To provide a general idea of possible topics for your prenup, I have outlined some considerations below. Each item, as with the agreement itself, is customizable to meet the needs of the couple, as well as each individual. Discussing these topics may also help couples realize other related areas that should be covered in the prenup.

Financial Disclosure:

A prenup requires full financial disclosure to your partner as you prepare for marriage. Talking about debts and assets is difficult, regardless of one’s financial position. A prenup provides the opportunity for both parties to offer full financial disclosure, allowing each person to enter into the marriage fully aware of the financial circumstances. A transparent discussion about finances helps to create a strong foundation for the marriage.

Assets/Property acquired during the marriage:

Property acquired during the marriage is normally considered to be “marital property,” meaning that it is subject to equitable distribution upon a divorce. In a prenup, couples may set certain stipulations for this, including whether certain property will not be considered marital property, or how property should be treated in the event of a divorce.

Assets/Property brought into the marriage:

Property being brought into the marriage is normally considered to be that party’s “separate property,” so that even upon a divorce, the property would remain that party’s property. Just as the prenup can outline special stipulations for marital property, the same can be done for separate property.

Beneficiary designations:

A prenup is a way to foster discussions about, and make decisions around, the beneficiaries for retirement accounts, pensions, etc. Just having the conversation about this may open the door to other items the couple may want to include in the prenup.

Social Media:

More and more commonly couples are beginning to include social media provisions in their prenups. These clauses may be included to stipulate what pictures and posts may be made with or without consent. This can protect both parties from the dissemination of private information without each individual’s consent.

Maintenance:

Maintenance (also known as alimony), is where, in the event of a divorce, one party may be required to financially support the other. If a couple decides this is a clause they would like to include in their prenup, attorneys will help navigate the technical requirements included. Some couples also choose to waive this clause from the prenup all together. Attorneys will review the legal and practical issues to be considered in waiving this right.

Pets:

What will happen to the family pet upon a divorce? What if one spouse had a pet before the marriage, but both parties have equal attachment to the pet? The prenup can help provide a plan for what will happen with the couple’s pet upon a divorce.

This is just a small sample and general overview of what may be covered in a prenup. By beginning with general conversations, couples may be able to realize their unique goals and issues that they may or may not want/need in the prenup. Your attorney can also help you navigate the structure of the agreement and how the process will work.

Additional information about prenups, and a sample prenup checklist can be found on my website.