Minute Read

Prenups have long been used by the rich and famous to, well, stay rich and famous. (Okay, maybe not famous … but definitely rich!) For the rest of us, getting a prenup either seemed silly (because we weren’t rich and therefore didn’t need one) or greedy (because it made it seem like we were trying to screw our soon-to-be spouse before we even got married.)

Yet, in spite of the fact that getting a prenup is about as romantic as getting a root canal, more and more people are getting them.

According to the American Academy of Matrimonial Lawyers, 51% of the lawyers surveyed reported an increase in the number of millenials seeking prenuptial agreements in the past three years, and 62% cited an increase in the total number of prenup requests.

Even still, not everyone needs a prenup.

If you’re thinking of getting married, and you’ve wondered whether you should get a prenup, here’s what you need to know.

What is a Prenup?

A “prenup” (short for prenuptial or premarital agreement) is a legally binding contract a couple makes before they are married that controls what happens when their marriage ends.

At the risk of sounding as cold as the winter in Antarctica, the truth is: every marriage ends. It either ends in death or divorce. But it ends.

While most people think prenuptial agreements only deal with what happens in divorce, the agreements can also dictate what happens when a marriage ends in death as well.

Even though it’s legally binding, a prenuptial agreement may not last forever. Depending upon how it’s written, a prenup may be subject to change later if both parties agree in writing.

What’s in a Prenuptial Agreement?

For the most part, prenuptial agreements deal with money and finances. While some people have used prenups to try to control other things in their marriage (like how often they have sex, or get a home cooked meal) most of the time, prenups only deal with money.

That having been said, theoretically, you could put all kinds of crazy terms in your prenup. As long as you and your fiancé agree, and your prenup meets all of the legal requirements in your state, your prenup could cover many different things. (NOTE: In your state, putting anything in your prenup other than money and finances may not be allowed. Make sure to check with a good divorce lawyer in your state about this.)

Of course, the more you try to micromanage your marriage in your prenuptial agreement, the more difficult it will be to live with that agreement. (… and the more likely it is that your marriage will fail! Sorry!)

Here are some of the most common issues that people usually want covered in their prenup agreements.

Issues Your Prenup Can Cover

What will happen to assets you or your spouse had before you got married if you die or get divorced;
Who will be responsible for paying debts that you or your spouse had before you got married;
What will be considered “separate” property and what will be considered “marital” or “community” property;
Whether you or your spouse will be eligible to receive alimony/spousal support if you divorce. If someone can get alimony, your agreement can also cover how much will s/he get, how long will s/he get it for, and under what circumstances will s/he receive support;
Whether money you and your spouse earn or acquire during your marriage automatically becomes marital money or not;
Whether money you or your spouse inherit during your marriage will become marital money or not;
If your pre-marital assets grow in value, whether that growth will also be non-marital;
If your pre-marital assets (like a business) grow because of money or work you put in during your marriage, will that growth still be considered to be non-marital:
Who pays attorney’s fees if you get divorced;
How each of you will provide for your children from prior relationships if you die or divorce;
How each of you will handle your finances during your marriage;
Whether putting your spouse’s name on pre-marital assets turns them into marital property.

Issues Your Prenup Can’t Cover

While the law regarding premarital agreements varies from state to state, there are some things that a prenuptial agreement can’t do (at least in most states).

A prenuptial agreement can’t include issues of child custody or child support. It can’t limit a parent’s responsibility for a child.

A prenuptial agreement can’t contain any requirements that are illegal. In some state, a prenup can’t limit alimony/spousal support.

Finally, by definition, a prenuptial agreement is an agreement between two people contemplating marriage. They can’t be used by two people who are just living together without intending to be married. They also don’t apply if the people who were contemplating marriage never tie the knot.

How do You Make a Prenuptial Agreement?

To make a valid prenuptial agreement you and your spouse both need lawyers. While you can get your prenup done online, if you do that, it may not be valid. Or, even if it is valid, your spouse may be able to challenge it later.

(There is a famous story about Steven Spielberg, who wrote a prenuptial agreement on a cocktail napkin before he married actress Amy Irving. When their marriage dissolved five years later, the court would NOT enforce the agreement. Amy Irving got $100 million in the divorce, half of Spielberg’s fortune.)

Even though both you and your spouse need lawyers to make a valid premarital agreement, when you’re thinking about entering into a premarital agreement, YOU SHOULD NOT START BY GETTING LAWYERS!

Wait. What?

Your First Step

A prenup is an agreement between two people in a relationship. It is about money. Money is a very sensitive topic. Money means different things to different people. What’s more, people’s relationship with money can be very different.

Before you and your spouse start talking dollars and cents, you need to talk about the BIGGER stuff – like what money means to you. Does it mean security? Freedom? Status? Power?

How much money is enough money? Are you a saver or a spender? How do you manage your finances now? How do you plan on handling money after you get married?

THOSE are the kinds of questions you need to discuss BEFORE you start talking about who gets what if your marriage falls apart!

If you jump right in and start talking about alimony and dividing up your property in a divorce you are going to argue! You are going to hurt each other’s feelings. It’s going to be awful. What’s more, it’s going to be expensive.

What you probably don’t realize is that not only will you and your fiancée clash over the terms of your agreement, but your lawyers will too!

If you and your fiancée are not on the same page about money from the start, the lawyers will have more to argue about. Those arguments will cause a huge amount of stress and friction in your relationship. That’s why you START by talking about the big stuff, THEN get into the details.

(HINT: If you want to have a money conversation constructively, you may want to work with a relationship therapist! S/he can help you manage the conversation and really dig into the emotions that are beneath how you feel about money.)

How do Prenups Work?

Premarital agreements work like any other contract. At the same time, they are different from every other contract you’ll ever make in one very important way: they’re a contract between you and your spouse-to-be.

That means that the way you create and negotiate a prenuptial agreement is significantly different than the way you would create and negotiate any other kind of deal.

You and your spouse talk about the various issues you want your prenup to cover. Then you come to an agreement about those issues. You write your agreement into a formal legal document. Then you and your spouse sign the document and you’re good to go. (Although, depending upon where you live, you might need to have your signatures witnessed or notarized.)

Even though prenup agreements seem pretty simple, you have to follow some strict legal rules if you want them to be valid. To know exactly what your agreement needs to say it’s best to check with a family lawyer in your area. But, in general, your agreement:

Needs to be in writing;
Must be signed by both parties;
Must contain full disclosure of ALL financial assets and debts of both parties; AND
Must be signed freely, voluntarily and with full knowledge of the facts and consequences of the Agreement.

Both you and your spouse should consult with your own lawyers BEFORE you sign any kind of premarital agreement. If you use the same lawyer, that person clearly can’t be looking out for your interests AND your spouse’s interests at the same time.

Finally, prenups are based on full financial disclosure. If you or your spouse doesn’t want to come clean with your finances before you get married, then you probably aren’t going to be able to create a valid prenuptial agreement.

Does Everyone Need a Prenup?

While every engaged person should have a full and frank discussion about finances with his/her soon-to-be spouse before they get married, not everyone really needs a prenup agreement. At the same time, some people – particularly high net worth individuals or anyone who owns a business or has kids from a prior relationship — absolutely should have a prenup agreement.

People in the following situations should STRONGLY consider getting a prenup:

One fiance is much wealthier than the other.
Either prospective spouse owns real estate that s/he wants to keep separate.
One person makes way more money than the other.
One individual has a lot more debt than the other.
Either prospective spouse has children from another relationship.
One or both people in the couple own his/her own business or are part of a family business.
One person stands to inherit significant money in the future.

Who Doesn’t Need a Prenup?

Having a frank conversation about finances before you get married is important for every engaged couple. But, not every engaged couple needs a formal prenuptial agreement. Like everything else in life, prenuptial agreements aren’t free … and I’m not just talking about money.

Prenuptial agreements can take an emotional toll on your relationship. No matter how carefully you try to broach the subject of getting a prenup, your fiancé may start to question your motives for wanting one. That can sow seeds of mistrust in your relationship that may later take root and grow.

Finally, getting a prenup costs money. When you don’t have much money, you’re probably going to want to spend the little you do have on planning your wedding, not your death or divorce.

In sum, you probably don’t need a prenup if:

You are young, have no money (and are not likely to inherit vast amounts of family money), no property, no business, and no kids;
You are not willing to come clean about your finances. (Remember, unless you are willing to honestly and fully disclose your financial situation, a prenup won’t work.)

(MARRIAGE TIP: If you are engaged to someone who absolutely refuses to disclose his/her finance to you before you get married – RUN! If your fiancé won’t be truthful with you about money before you are married, chances are your spouse won’t be truthful with you about money after you are married.

Prenup Pros and Cons

To figure out whether investing in a prenuptial agreement is right for you, you’ve got to understand the benefits and the burdens of these agreements. Here are the pros and cons of prenuptial agreements.

PROS

1. It can protect your finances when your rose-colored glasses are clouding your vision.

Love isn’t just blind. It’s usually financially stupid. If you discover that the person you married is not the person you thought they were, having a prenuptial agreement can turn out to be the smartest thing you ever did. Often, just having the conversation about prenups can open your eyes to your fiancé’s feelings about money. While requiring a prenup won’t smoke out every gold digger, it may “out” yours.

2. It forces you to discuss money before you get married.

Getting a prenup requires you and your spouse to talk about your finances. It forces you to talk about how you feel about money, and how you handle money. While financial conversations can be uncomfortable, knowing how your spouse handles money before you are forced to handle money together is as important as knowing whether your spouse wants children or not.

3. It can help safeguard assets for your kids from a prior marriage.

A premarital agreement can help you make sure that assets that you want to share with your kids actually make it to your kids if you die or divorce. It also gives your fiancé advance notice that you want or need to keep certain assets available for your kids. S/he is not going to go into your marriage thinking your financial situation is different than what it really is.

4. It can help secure any business you built before you got married.

Businesses, especially small businesses and family businesses, can fall apart if one of their owners is divorcing or is suddenly strapped for cash. Having a prenuptial agreement in place can safeguard your business by classifying it as your separate property. It can also make sure that your spouse can’t force his/her way into the business if you die or divorce. (HELPFUL TIP: Even if you have a prenuptial agreement in place, you may need other corporate documents to totally safeguard your business. Check with your corporate attorney about that.)

5. It can protect your spouse from your ex.

While most people think of a prenup as protecting the spouse who has money or children from a prior marriage, it can actually protect the other spouse, too. By establishing what is and is not separate income and property, a premarital agreement can protect your new spouse’s income and assets if your former spouse tries to go after them to pay for things (like college) for your children.

6. It can save time and money if you divorce.

If you and your spouse have agreed in advance about how you will divide your property, deal with alimony, and handle attorney’s fees if you divorce, you will limit the number of issues you can fight about if you divorce. (Of course, you can still fight about whether your prenup is valid or not!)

7. It can limit the amount you have to pay your spouse in alimony if you divorce.

One of the main reasons rich people get prenups is to limit their liability to pay spousal support if they divorce. How and how much you limit alimony depends on you, and on what your prospective spouse will agree on. (HELPFUL TIP: Some states don’t allow you to do this. It’s important that you consult with an attorney in your area before you enter into any prenuptial agreement.)

8. It can limit your responsibility to pay for your spouse’s attorney fees if you divorce.

Most people don’t realize that the law in their state may require them to pay their spouse’s attorney’s fees if they divorce. Since no one who is getting a divorce really wants to pay their spouse’s attorney, this often becomes a hotly contested issue in divorce cases. Dealing with this issue in a prenup takes it off the table in your divorce.

CONS

1. They can shake the foundation of your relationship.

Prenups are more than just unromantic. If you don’t handle the prenuptial conversation correctly, or if your fiancé is hyper sensitive, s/he may think that, since you want a prenuptial agreement, you must not believe your marriage is going to last. Your fiancé can feel like you don’t trust him or her. All of this can do serious damage to your relationship.

2. Legal negotiations can get ugly fast.

You and your fiancé may be blissfully in love, but your lawyers are not. Lawyers are trained to protect your rights, not your long-term happiness. Hopefully, your lawyers will help you negotiate your prenup with sensitivity and common sense. Many do not. What’s more, even the most well-meaning lawyers can create conflict in your relationship. (HELPFUL TIP: You can also use mediation or the Collaborative Process to negotiate your prenup. That will make the negotiation process much less contentious!)

3. Prenups don’t prevent as much divorce conflict as you think.

Despite what you might think, prenups are not always ironclad. Rich, disgruntled spouses challenge their prenups all the time. Plus, even if a judge eventually upholds your agreement, s/he can’t prevent your spouse from challenging it in the first place. When that happens, your prenup becomes just one more thing to argue about in your divorce.

5. A prenuptial agreement can end up being really harsh if circumstances change.

No one has a crystal ball. If your life changes, the agreements that made perfect sense when you wrote your prenuptial agreement, might make no sense at all if you die or get divorced. For example, limiting the right to receive alimony/spousal support might seem fine on a couple’s wedding day. But, if one spouse later becomes sick or disabled, giving up that right can prove to be crippling.

6. It’s easy for prenuptial agreements to become overreaching.

It’s never the poor, broke fiancé who wants a prenup. It’s the fiancé who has money (or his/her family has money) who wants protection. Some people think that’s unfair. It’s as if the richer fiancé is saying to the poorer one: either you give up all of your rights if we divorce, or I won’t marry you. What’s more, lawyers will usually go out of their way to try to protect their clients in every possible circumstance. The end result can be an agreement that goes way too far to protect the fiancé with money.

Top Reasons for Invalidating Prenups

With all the angst that prenups cause for the soon-to-be married, you would think that they must be impossible to get around. Yet, people get around them all the time. Plus, even if they don’t, they still try.

In general, most courts in America today will uphold prenuptial agreements. But prenups can still be held to be invalid for a variety of reasons. Here are 5 of the most common reasons that a court may refuse to enforce a prenuptial agreement.

It was not in writing, or it was not properly signed by both parties. While family laws vary from state to state, for the most part, to be valid, prenuptial agreements must be written and signed. Period.
Lack of Full Disclosure. In order to create a valid prenuptial agreement, each party must completely and honestly disclose their finances to their fiancé. If one person lies to the other about his/her wealth, or hides certain assets, the entire prenup can be held to be invalid.
Lack of Legal Counsel. Before signing a prenup, each party must get his/her own, independent legal advice. Each party has to be fully aware of what all the terms in the agreement mean BEFORE signing the agreement.
Duress. You and your fiancé must enter into your premarital agreement freely and voluntarily. Your fiancé can’t waive a prenup under your nose while you’re standing at the altar saying: “Sign this agreement now or the wedding is off!” That’s duress.
The Agreement is Unconscionable. The term “unconscionable” is a legal term. It is usually described as “shocking to the conscious.” If an agreement is so one-sided that it is shockingly unfair, a court would likely find that agreement to be unconscionable.

The Truth About Prenups

You don’t need to be rich or famous to get a prenup. Plenty of ordinary folks could benefit from having a prenup. Yet, not everyone wants or needs one. Ultimately, deciding whether to get a prenup or not is a highly personal decision.

If you prefer to have the financial “rules” of your marriage laid out for you from the start of your marriage, then getting a prenup is a great idea. If getting a prenup makes you feel like your marriage is doomed from the start, then maybe getting one won’t be your first choice.

Either way, remember that, like any other contract, a prenuptial agreement is a legal document. It can have a huge impact on your finances and your future if you or your spouse dies, or if you divorce. It is not an agreement you should enter into lightly or one that you should make without first talking to an attorney.

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* Since divorce laws vary from state to state, it is important that you consult with an attorney in your state before entering into, or relying on, any prenuptial agreement.

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