If you are getting ready to get married, there are plenty of decisions that need to be made, including if you will both sign a prenuptial agreement. Whether or not you choose to protect your assets with a prenup is a decision that can only be made between you and your future spouse, but it is important to know everything you can about prenups and what can (and can’t) be included in them before you begin this conversation.
Prenup Basics
A prenup is a written contractual agreement between two soon to be married parties that lists the properties and debt that each person is bringing into the marriage and clearly states the rights and responsibilities of each party both during the marriage and in the event of a divorce or death. A prenuptial agreement is drafted and negotiated between the parties until both sides are satisfied with the end result, at which point it is signed and executed. Full financial disclosure is essential to reaching an agreement pertaining to the prenup as well as to have a successful marriage.
What Can Be Included in a Prenup?
A prenuptial agreement can be as broad or as specific as the engaged couple wants it to be. Many expect prenups to be agreements for spousal support and division of assets, in the event of a divorce. A well executed prenup should also include monetary, property and business assets and debts, estate planning, and provisions for any children from previous marriages. Finally, any business assets as well as the business itself should be covered by a prenup for business owners.
Assets
Assets are considered to be any property owned by a person. This can be monetary, business or personal property. Property can be financially valuable or it can be something of personal value to a person that has little or no monetary value. Each couple brings assets from their lives before their marriage and also obtains assets throughout their marriage. Another asset that can be planned for and protected in a prenup is an inheritance that one party is expecting to receive. The goal of a prenup is to define the way these assets are handled during the marriage and potentially after the divorce.
Alimony
Alimony is a form of spousal support that is often planned for in prenuptial agreements. In alimony, it is agreed that one person, often the caretaker of the children, will receive financial support in the event of divorce. Though alimony is often a consideration between couples who plan to have children, it does not depend on the couple having children at all. It can go hand in hand with child support or can be completely independent of children.
Division of Debt
Oftentimes, one or both parties come into their marriage with large amounts of debt. Prenuptial agreements can be used to protect each person from being left holding their exes debt at the end of a marriage. Also, assets will be accumulated during a marriage that translate into large amounts of debt that will need to be dispersed in the event of divorce. With a strong prenuptial agreement, a couple already has a plan for what they will do with both their family home and their family mortgage if their marriage is no longer viable.
What Cannot Be Included in a Prenup?
There are many parts of a prenup, but there are also a few parts of marriage that can not legally be determined by this document. Custody and child support matters cannot be decided in a prenuptial agreement. A prenup also cannot cover any activities that defy the law. In addition, a prenuptial agreement cannot determine factors of day-to-day life, such as chores and responsibilities. A prenup cannot tell a person that they are responsible for laundry and dishes - it can’t even force a person to be a stay-at-home parent or force them to hold down a job.
Child Custody
Matters of child custody cannot be planned for in a prenuptial agreement. Custody matters must be decided by the courts on an individual basis. There are many considerations involving child custody such as the safety of the children, the circumstances of the divorce and sometimes, the wants of the children. These are investigated and decided by family law and are in no way connected with an existing prenuptial agreement.
Child Support
Like child custody, child support is decided on an individual basis for each child and cannot be determined by a prenuptial agreement. Child support is determined by the needs of the children and the financial situation of each parent and cannot be decided without current information which cannot be planned for in a prenup.
Anything Illegal
Including anything illegal or prohibited by state law can cause your prenuptial agreement to no longer be legally binding. Fraudulent disclosures regarding debts, assets or another matter can render your prenup invalid. Forcing a party to sign a prenuptial agreement under duress or without legal representation is another circumstance where your prenup can be declared not an enforceable prenuptial agreement..
Can You Change a Prenup After You’re Married?
Prenups can be changed or even begun after marriage, making it a postnuptial agreement or postnup. In most cases, a prenup can be modified after the initial agreement, so long as both parties agree to it and the changes are legal and ethical.
As life circumstances change, it can be the responsible decision to make modifications and amendments to your prenup to plan for events that your pre-marital self never could have imagined.
Full Disclosure is Essential for Both Parties
Possibly the most important part of your prenup, and your marriage itself, is having an open and honest conversation regarding what you each bring to the marriage - assets and debts. Having open communication concerning the financial situations of each party establishes an initial trust between marital partners and develops open communication moving forward in your relationship, even in situations with less than ideal financial circumstances. Making false declarations is not only a recipe for disaster in your marriage, but it can render your prenup invalid.
The Importance of Involving an Experienced Family Law Attorney
The entire purpose of a prenup is to guard and protect future possibilities, positive or negative. There are DIY prenups online, but there is peace of mind to be found in having an experienced attorney who knows the laws that protect you and your future can be worth more than money.
Stolar Law Group- Your Prenuptial Partners
Here at Stolar Law Group, we are passionate about protecting you and your rights. Give us a call today at (424) 421-0009 or visit us online for answers to your most pressing prenup questions.
