Marriage can be a wonderful thing, the months leading up to the wedding are full of anticipation and excitement of your new life to come. There are some significant matters to consider and one of the most important things to deliberate is having a prenuptial agreement (prenup agreement) written-up for you and your soon-to-be-spouse. A prenuptial agreement is essentially a contract between the two parties, that account for each person’s best interest in the division of assets, without purposely and negatively impacting the other person.
For the prenuptial agreement you should ensure you have plenty of time before the wedding, to guarantee no one is signing the agreement in a hurry or under duress. If one party has retained a lawyer to formally draft the agreement, it is smart for the other party to also hire different legal counsel and have the agreement additionally reviewed, to make sure it is beneficial to both parties and does not have any hidden clauses or statements. One attorney cannot represent both parties in this matter, however there needs to be only one agreement drafted. An experienced and ethical attorney should never purposely and knowingly include harmful and damaging statements in the agreement against either party.
What a prenup is: The prenup should outline both parties wants and needs. The document should benefit both parties, not strongly favor one party over the other. The best way to ensure the agreement is fair - it should be drafted by an experienced attorney and notarized, not written by the couple, a family member or that one friend that took a few legal classes in college. This can also help ensure, should the marriage ever dissolve, that the prenup will be honored in court. Although rare, there are exceptions when a judge will choose to disregard the prenuptial agreement during divorce proceedings.
What you can include in a prenuptial agreement:
- Prenup agreements outline assets as separate property, meaning your assets stay yours and will not be considered marital property during divorce proceedings and after (should it ever come to that point of course.) Assets could include cars, house, yacht, tandem bike, arts and craft supplies for your Etsy side business and countless other possessions.
- This section can also include the spouse’s rights to your property should you choose to let them manage or control some of them.
- You can keep more than physical assets separate - you may have bank accounts, money in savings, retirement accounts, 401K’s in your name only and this is a great way to ensure they remain only yours.
- If you are expecting an inheritance, adding it into the agreement will also ensure it remains as separate property and not marital property, to include your spouse.
- Debt (past and present) if one of the spouses has thousands of dollars in debt, it can be outlined in the document that the debt shall remain separate during and after the marriage (should it be needed.)
- If you or your spouse own a business – this would be a great place to plan the needs of the business and keep things separate, should you choose to do so of course.
What a prenup is not: The prenup is not an automatic will or Power of Attorney, a marriage certificate or a divorce decree; those are all completely separate documents. Having a prenup written up does not indicate that you must get married, if between the signing of the document and the actual wedding date, there is a breakdown of communication between both parties, and the wedding does not commence - the prenuptial agreement should be destroyed and neither party is held liable any-longer by the aforementioned agreement.
What you cannot include in a prenuptial agreement:
- You cannot include any clauses or statements regarding child custody or child support – the custody and support are for the benefit of the child and not the parents. Should you divorce in the future, the courts, and the judge, will have the final say for what is best for the child.
- How the household will be managed, i.e., who will take the kids to soccer practice, who will cook dinner or take care of the house – those are matters to be determined by the couple during the duration of the marriage, not stated in an agreement. How time is spent cannot be predisposed in the document.
- Dividing vacation time and holidays – as much as you might want to avoid going to your in-laws for the holidays and spend your vacation time on a beach somewhere; this is not a viable solution and it cannot be added as a part of the requirements under the agreement.
Prenuptial agreements have been known to get a less-than-perfect reputation but they are able to promote open and honest communication about each person’s needs, wants, assets and expectations out of the marriage. There are certainly instances in which during a divorce, the judge will choose to completely disregard the prenup, while rare, it is still a possibility. The prenuptial agreement should be agreed upon in its entirety by both parties in a relationship, it should be drafted by a practiced lawyer and it should be used to protect both parties from unexpected surprises, should the marriage ever come to an end. If you’ve reached the irreversible breakdown of communication with your spouse and would like to explore the options of a divorce, it is a great idea to consult with an experienced family law and divorce attorney.
If you’re already married without a prenuptial agreement there are alternate options out there for you, such as a post-nuptial agreement, also known as a marital agreement. Prenuptial agreements are pre - or before marriage, post-indicating it is after the couple has been married. The rules are the same for both types of agreements, you are able to separate debts and assets, yet still unable to include child custody, support or a division of time in the document. If you’d like to get started on your prenuptial agreement and would like more information you can contact The Law Offices of Eugene Mogilevsky, LLC by submitting an online Contact From through our website at Contact Us | The Law Offices of Eugene Mogilevsky (egmlegal.com) or by calling our office directly at (317) 743-7958.
Disclaimer: This blog post is for educational and informational purposes only and is not to be taken as legal advice in any capacity. Reading this blog does not constitute or establish an attorney-client relationship.