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A prenuptial agreement, or premarital agreement, is a legally binding and valid document between two people planning to wed. This document shares the couple’s memorialized desires in the event of a divorce, namely how the below are handled:

  • Property
  • Child custody
  • Alimony
  • Other topics surrounding the separation

You sign a prenuptial agreement before receiving an affidavit of marriage, which is a common alternative to a marriage certificate.

Contrary to what some believe, a prenuptial agreement can lead to more minor issues and allow both parties to enter a legal separation agreement will less emotional turmoil and stress should the need arise.

Below are seven important things to include in any sound prenuptial agreement.

1. Premarital Assets and Debts

The premarital agreement should include a description of how you and your spouse will divide assets and settle debts in the event of a divorce. This can help prevent financial issues stemming from disputes over real estate, cars, and other financial assets.

Property rights should be listed clearly in the agreement if you or your spouse owned any real estate before marriage.

The court will strive to achieve a split “equitably,” meaning that both parties are given their fair portion of any assets. Any assets you owned or debts you had before marriage will remain separate from your spouse.

You may wish to include a financial affidavit outlining your assets, income, and debts before marriage so the court can see what belonged to you before you were wed.

Financial affidavits are also commonly used when calculating fair spousal support amounts.

Here is an article that provides an overview of a prenuptial agreement.

See Prenuptial Agreement Pricing by State

2. Assets and Debts Acquired While Married

Any assets and debts you acquire with your spouse or during your marriage will be subjected to the separation laws in your state. In addition, under automatic property rights, you and your spouse may be required to legally split the cost of any shared property you have.

Some spouses may resolve to sell any homes and shared vehicles and split the profits; others may “buy out” property and assets from another spouse.

Debts acquired during a marriage will belong to the signers. So, if you and your spouse both signed onto a loan, you must split the accountability 50/50.

Both parties are obligated to pay an equal amount, regardless of who decided to borrow the loan or how the money was distributed.

This does not influence the prenuptial agreement cost or who is responsible for any legal fees affecting the divorce.

No one inherits debt by getting married, but you can inherit debt if you borrow money with your spouse.

Here is an article to learn more about joint debt.

3. Children from Previous Marriage

A prenuptial agreement must specify that a parent should keep all rights and assets acquired before their second marriage. You can specify how assets, such as college savings accounts, may be distributed after the divorce if the spouse invested in the child’s funding.

A prenuptial agreement can also include what will happen to your personal assets in the event of your death during the marriage. For example, you can lay out what assets will go to your children (and their legally appointed guardians/other parent) and what you will leave to your current spouse.

As for financial support, a step-parent is not legally required to pay any child support to their step-children following a legal separation and divorce.

This means you cannot sue a spouse to support non-biological children after your marriage ends, even if they provided for them financially during your marriage.

However, if your spouse legally adopts your children, then those children are now theirs legally, so they will be required to pay child support until they come of age. This is 18 or 21, depending on your state.

Here is an article to learn more about stepparent adoption.

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4. Marital Responsibilities

A lesser-known clause of a prenuptial agreement is martial responsibilities. This clause details the roles each spouse will fulfill in their married relationship.

Marital responsibilities can specify the division of household chores, such as washing dishes, taking out the trash, and caring for pets.

However, it is essential to note that this clause does not make either individual legally responsible for fulfilling specific tasks in a marriage. In other words, you cannot sue your spouse for breach of contract because they are not doing chores they said they would in a premarital agreement.

Marital responsibilities are not often included in prenuptial agreements as they are not usually legally enforceable.

That being said, some couples still like to outline how they would like to include these provisions in their agreement.

Here is an article to learn more about marital responsibilities and their role in prenuptial agreements.

5. Work

Suppose you and your spouse run a business together. In that case, your prenuptial agreement can delineate how those assets will be divided and shared after your separation.

You can also clearly state that any business ventures a partner had before the marriage will remain their own after the divorce, and the spouse may not sue for any financial gains after the separation.

Here is an article that explains how a premarital agreement can help business owners protect their assets.

6. Family Property

Family property is any property that a spouse brings into a marriage. Family property that does not belong to the spouse, i.e., their name is not on the deed, will not be divided after a divorce.

The only time a spouse has an entitlement to a family property is if they were added as a legal owner of the property.

Otherwise, under property laws, the partner who originally owned the property will remain the sole custodian of the property post-separation.

In terms of housing, however, you may decide to contest your partner in court over who keeps the home. Again, a prenuptial agreement can make this easier. An uncontested divorce is ideal, which a premarital agreement can help you achieve.

Here is an article that explains who gets a house legally after a divorce and what you can do about your property rights.

7. How Property is Split in a Divorce

Property should be divided equally if both spouses own the home. However, suppose there is only one legal property owner. In that case, contests may arise over who has a right to remain in the home.

There are reasons why you may argue to keep a home following divorces, such as the emotional trauma moving and divorce can have on school-aged children.

You will have to follow your state’s divorce laws regarding property division. This may include selling any shared properties, splitting the profit, or buying the property from your spouse to become the sole owner.

Here is an article to learn more about dividing assets in a separation agreement.

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ContractsCounsel is not a law firm, and this post should not be considered and does not contain legal advice. To ensure the information and advice in this post are correct, sufficient, and appropriate for your situation, please consult a licensed attorney. Also, using or accessing ContractsCounsel's site does not create an attorney-client relationship between you and ContractsCounsel.

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