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What Is a Prenuptial Agreement?
A prenuptial agreement, also known as a premarital agreement or prenup, is a legal agreement entered into by two parties before they get married that outlines everyone’s assets and specifies how financial issues will be handled in case a divorce occurs. Prenuptial agreements are often associated with individuals who are wealthy, but this type of agreement can benefit any couple who intends to get married.
Alternatively, a postnuptial agreement is a similar document signed after two people are married and can be an option when people experience significant change in wealth after their marriage. A postnuptial agreement is sometimes seen as less enforceable, but will depend on the jurisdiction.
Regardless of whether a couple enters a prenup or postnup, it must be entered into voluntarily with full financial disclosure and have fair terms. It is recommended to always speak with an attorney who can explain your rights and options prior to making a decision.
A prenuptial agreement allows the couple to address potential divorce issues early in the relationship when both parties are more likely to deal fairly and generously with one another. This document clarifies which assets belonged to each party before the two merged their homes while also specifying what assets each individual will be entitled to at the dissolution of the marriage and after the couple has combined some of their resources.
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The Popularity of Prenuptial Agreements
In recent years, prenuptial agreements have increased in popularity. In a 2018 survey by the American Academy of Matrimonial Lawyers, 62% of lawyers polled said they had seen an increase in the number of clients seeking prenuptial agreements during the last three years. Some of this increase may be due to couples waiting longer to get married and accumulating more wealth and assets before getting engaged. The prevalence of divorce in previous generations may also contribute to the increase in prenups, since many millennials now getting married have divorced parents.
Benefits of a Prenuptial Agreement
Couples have many reasons to consider a prenuptial agreement.
Protection for Children From Previous Marriages
If either individual has a child or children from a previous marriage, a prenuptial agreement can include essential provisions that will help protect the children in the marriage. A prenup ensures that a child's biological parent can leave a portion of the estate to the child in the event of the parent's death. If the prenup is not in place, the surviving spouse may inherit most or all of these assets, leaving less than what the parent might have desired for the child.
Comprehensive Planning for the Future
Prenups cover more than divorce alone. Although divorce is the most common reason a couple will use a prenup, this document can also specify what happens in the case of death or incapacity.
Protection From Debts
If either party is entering the marriage with debts, a prenuptial agreement can clarify who these outstanding debts belong to. This arrangement will protect the other party from taking on the debt in the event of the divorce, an important point if the debts are substantial.
Safeguards for Personal Property
A prenuptial agreement can specify what property belongs to each party. If one of the individuals owns a home, vehicle, or other significant assets, a premarital agreement can prevent the other spouse from attempting to claim these pieces of property in a divorce settlement. Those who are engaged are more likely to deal fairly with one another, which could help the couple avoid disputes later if the marriage ends.
Protection From Typical Divorce Settlements
Understand what a typical divorce settlement would look like so that you can fully appreciate the value of a prenuptial agreement. Lacking a prenup, each spouse will typically have shared ownership and management of property acquired during the marriage. The spouses will also share liability for debts incurred in the marriage, leaving both parties to pay for these liabilities.
Personal Matters
Most people look at prenuptial agreements as a way to primarily address financial matters. However, some couples will choose to include clauses that address personal matters to better guide their behavior during marriage. Example of these include household responsibilities, frequency of in-law’s visits, parenting styles, and lifestyle clauses. While some may not be legally enforceable, they can still serve symbolically to the couple as a way they want to manage their relationship.
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- Idaho
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How to Handle a Prenuptial Agreement
Be aware of the requirements for a prenuptial agreement so that you can make sure that this document holds up in court if you need to call upon it in the future. While you can draft your own prenuptial agreement, you should do so with care and make note of the following considerations.
Plan Ahead
You should discuss your prenuptial agreement as soon as possible after you get engaged. Aim to complete this contract at least six months before the wedding. If you wait until a significant part of the wedding planning is complete, you may have trouble proving that the prenup wasn't entered into under duress. Once the parties have invested in sending invitations, putting a deposit on a wedding venue, and purchasing wedding attire, proving that the prenup was entered into freely becomes more challenging.
Secure Separate Attorneys
A single attorney cannot represent both parties fairly. Working with separate attorneys ensures that each party has someone reviewing the contract who is interested solely in the individual's best interests. An attorney is also a valuable resource for navigating issues that are specific to your state. Every state handles prenups differently. You should consult with a local attorney who understands the process in your area. You may want to:
- Create the first draft of the prenuptial agreement together.
- Individually take the document to separate lawyers for review.
- Meet together with both lawyers to review the changes and finalize the document.
Know What Areas to Include
You can put many items into a prenuptial agreement. While you're taking the time and effort to create this document, consider including as many details as possible. Some items that you can include in a prenup are the following:
- Distribution of retirement benefits
- Specifications on how you will file tax returns
- Details on the management of finances in your marriage including joint bank accounts, household bills, and expenses
- Information on savings contributions
- Arrangements for large purchases such as a home
- Specifications for managing a joint business
- Details on financial management if a spouse goes back to school
- Information on how disputes will be handled where arbitration or mediation is involved
- Management of credit card payments and spending
- Distribution of property and life insurance in the event of one spouse's death
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The Limitations of a Prenuptial Agreement
A prenuptial agreement is not all-encompassing. You can't manage all aspects of a marriage with this type of contract. You should understand these limitations before drafting the prenup, particularly if you're creating this contract independently. A prenup that includes the following may be deemed invalid:
- Child support: Child support is the right of a child, not the parent. Courts will not validate a prenup that attempts to waive a child's right to support, even if both parties are in agreement on the issue.
- Child custody or visitation: The courts maintain the right to determine how child custody and visitation are handled based on the interests of the child. The parents may not specify how these issues will be handled in a prenup.
- Incentives for divorce: Anything that might encourage a divorce will likely invalidate a prenuptial agreement.
- A waiver of alimony: Many states prohibit alimony waivers, and others limit them. While a few states allow alimony waivers, these waivers must be handled carefully. The states that do allow alimony waivers usually have to be ‘fair and reasonable’ at the time of enforcement.
- Personal matters: A prenuptial agreement is designed to deal with the couple's financial matters. It cannot be used to specify how the couple will raise their children, manage the housework, divide the holidays, handle surnames, or allocate their time, among other considerations.
A prenuptial agreement is a valuable document that deserves a great deal of time and consideration. When drafted properly, this contract can provide you and your spouse with a great deal of protection as you both approach the future together.
Meet some of our Prenuptial Agreement Lawyers
Gill D.
Erik has been a practicing attorney in Florida for over a decade. He specializes in employment and real estate contracts. He has represented clients big and small and can assist with any contract issue.
Scott S.
Scott graduated from Cardozo Law School and also has an English degree from Penn. His practice focuses on business law and contracts, with an emphasis on commercial transactions and negotiations, document drafting and review, employment, business formation, e-commerce, technology, healthcare, privacy, data security and compliance. While he's worked with large, established companies, he particularly enjoys collaborating with startups. Prior to starting his own practice in 2011, Scott worked in-house for over 5 years with businesses large and small. He also handles real estate leases, website and app Terms of Service and privacy policies, and pre- and post-nup agreements.
Donya G.
I am a licensed and active NY and CT Contracts Attorney, with over 20 years of diverse legal and business experience. I specialize in reviewing, drafting and negotiating commercial agreements. My practice focuses on working with small business clients as well as clients from international brokerage firms on acquisitions, especially in the Ecommerce space; drafting, negotiating, reviewing and advising on business agreements; ; breach of contract issues, contract disputes and arbitration. I am licensed to practice in New York and Connecticut, and am a FINRA and NCDS Arbitrator. My experience includes serving as General Counsel to small businesses. This entails reviewing, updating and drafting contracts such as employments agreements, asset purchase agreements, master services agreements, operating agreements and a variety of business and commercial contracts. Additionally, I assist clients with business strategies, contract disputes and arbitration. My diverse experience allows me to give my clients a well-rounded approach to the issues they face. I have been at top AML law firms; a Vice President at an Investment Bank, a Civil Court Arbitrator presiding over cases in contract law, commercial law, a Hearing Officer, presiding over cases and rendering written decisions, and a Judicial Clerk to a Civil Court Judge. It would be a privilege to assist you and your business with my services.
Edward R.
I have been a California since 2003 when I graduated from the University of San Diego School of Law and have worked in-house and at several major law firms before starting my own practice. I specialize in intellectual property and other business-related issues and have helped many entrepreneurs grow their ideas into profitable businesses.
July 2, 2023
Thomas B.
Accomplished Attorney with 33 years of experience assisting clients with their legal needs, including reviewing and drafting of various contracts and agreements.
July 2, 2023
George K.
I've represented small, medium, and Fortune 500 companies in business and litigation matters over the past twenty years. Working for various clients exposed me to a wide range of practice areas and issues. I now manage and own my firm. Contract review and drafting, negotiating agreements and settlements, and defending a variety of lawsuits is the heart of my practice. I'm efficient, solution driven, and work well with clients, other parties, and opposing counsel. I was awarded the American Jurisprudence Award in Advanced Legal Writing and am an excellent writer. I'm also the recipient of the Outstanding Young Lawyer Award and the ABA Military Pro Bono Project Outstanding Services Award. I'm a Marine Corps veteran. My attitude, experience, and expertise will help you achieve your goals.
July 3, 2023
Eleanor W.
I have been working as a document review attorney since 2011. I have also done some business and estate planning work. I am fluent in English, Chinese, French, and Japanese.
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Prenuptial Agreement
California
Are prenuptial agreements public record?
My partner and I are considering signing a prenuptial agreement before getting married. I want to keep it confidential and I'm not sure if we have to file this with the state or when we get married and would be publicly available?
Michael M.
Prenuptial Agreements are private agreements between the parties. They are typically not public, however, if the matter goes to court, they can be made part of the public record.
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Prenuptial Agreement
New York
Prenup
Hey i'm getting married next month in NY How much will it cost?
Jane C.
I suggest you submit a proposal for lawyers to bid on.
Family
Prenuptial Agreement
Massachusetts
How does a prenuptial agreement affect taxes?
As a couple planning to get married, my partner and I are concerned about the tax implications of a prenuptial agreement. We are wondering if entering into a prenuptial agreement will have any impact on our tax obligations or if there are any specific tax considerations that we should be aware of. We are seeking advice from a lawyer who can provide us with guidance on this matter.
Briana C.
A prenuptial agreement does not in itself affect how taxing authorities will treat the spouses. But it can create promises between the spouses toward one another. For example, it may create a promise to file jointly, or specify that they are making no such promise. And it can create a promise by each spouse to pay the other back for any taxes the other pays on his or spouse's behalf. The decision whether to file jointly or separately does have tax implications with taxing authorities.
Estate Planning
Prenuptial Agreement
Massachusetts
How does a prenuptial agreement affect estate planning?
I am getting married soon and I am interested in understanding how a prenuptial agreement would affect my estate planning. I would like to know what steps I should take to ensure that my assets are protected and that my wishes are carried out after I pass away. I am also curious as to how a prenuptial agreement might affect the distribution of my assets to my family members and other beneficiaries.
Briana C.
A prenuptial agreement does not create an estate plan. But it can do two things. First, a prenuptial agreement can create a contractual promise on the part of one or both spouses to do something in particular with their estate plan (such as promising to leave the marital home to the surviving spouse, or promising to leave everything they have to the surviving spouse, or promising to set up a trust, etc. etc.). If this contractual promise is broken, the surviving spouse has a contract claim against the estate of the dead spouse. Second, and almost the opposite, in a prenuptial agreement one or both spouses can waive the rights they would otherwise have by statute, thus freeing up the other spouse to do whatever he or she wants with her estate plan. Without a prenuptial agreement, a surviving spouse is entitled by statute to inherit a certain proportion of the estate of the dead spouse (the exact proportion depends on whether or not the dead spouse has a will, and/or has surviving children). The prenuptial agreement can override these statutory rights and provide that the surviving spouse is not entitled to inherit anything from the dead spouse, except for anything the dead spouse may choose to leave the surviving spouse in his or her will.
Family
Prenuptial Agreement
Massachusetts
Is a prenuptial agreement legally binding?
I am planning to get married and I have been advised to consider a prenuptial agreement to protect my assets in the event of a divorce. However, I am unclear on the legal validity and enforceability of a prenuptial agreement and whether it can be challenged or overturned in court. Therefore, I would like to seek the advice of a lawyer to help me understand the legal implications of a prenuptial agreement and ensure that my interests are protected.
Briana C.
Judges in most cases honor and enforce (signed and notarized) prenuptial agreements between two spouses as long as both parties entered it freely and voluntarily and with full knowledge of one another financial circumstances, and the agreement is not "unconscionable." A prenuptial agreement may not be enforced if (1) either party signed it under duress or coercion or undue pressure (or, say, the night before the wedding), (2) the party seeking to enforce it did not truthfully and completely disclose their financial information, or (3) enforcing the prenup would leave one spouse so destitute that they could not meet their most basic living expenses (i.e., would be forced onto welfare). In short, the prenuptial agreement will be enforced if (1) all the procedural requirements were met at the time it was signed and (2) the terms are not unconscionable, taking into account the circumstances existing at the time of divorce.
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