A prenuptial agreement is not a very romantic thing to consider when you are about to tie the knot. It's an agreement you and your fiance make before your marriage that sets out who gets what in case you divorce.
Is a prenup required? No. Is it recommended? Many attorneys and other divorce experts suggest that a prenup is a very good idea. But the final decision is up to you and your fiance. Read these six reasons to get a prenup, then make the decision for yourself.
1) Community property laws won't be applied to divide up your assets and debt
If you don't sign a prenup, your assets and debts will be divided just the same if you divorce. And you won't get much of a say.
Each state has laws that set up a legal framework for how your marital assets and income are treated if you divorce. Writing a prenup makes a lot of sense if you don’t like your state's framework. It allows you and your spouse to decide these issues for yourselves.
Your state will either be a community property state or an equitable division state. If you live in one of the states with community property laws, like California, every dime you or your spouse make during marriage is counted as belonging equally to both of you. If you divorce, each person is awarded five cents of that dime.
On the other hand, property you own before marriage is your separate property. Assuming you don't share it during marriage in a way that represents a gift, your separate property will be awarded to you if you divorce in a community property state.
If this type of sharing marital income doesn't appeal to you, you can ditch the entire system by signing a valid prenup. Be sure to have an attorney look over it before you sign.
2) Your separate property won't be given to your spouse in case you divorce
If your state is an equitable division state, the law requires that all property either of you own be divided equitably in divorce. While community property states divide community property equally, equitable division states divide all property – that you acquired during marriage and that you brought into the marriage – equitably.
Does this mean that some property you own before marriage might be awarded to your spouse? It does. Does this mean that you may not get to keep the house your parents bought for you? It does. The "equitable division" is determined by the judge, not you.
So if you live in an equitable division state and the law doesn't please you, it's time to think about a prenuptial agreement. You'll each need to sign it, usually before a notary, in order for it to be binding. Be sure to understand your state's requirements so that your agreement is valid.
3) You'll learn about your fiance's assets and debts
You can't agree about dividing up marital assets if you don't know what your fiance is bringing into the marriage. Because of that, courts won't enforce a prenup unless each person disclosed his or her assets to the other. This disclosure has lots of benefits in and of itself.
In order to truly join your lives together, many would argue that you and your fiance need to trust each other. So why wouldn't each of you be okay with discussing your current and likely future assets and debts before you say "I do?"
Agreeing to a prenup eliminates financial secrets that might otherwise cause problems in your marriage. You may also learn other things your fiance neglected to mention, like a child from a prior relationship he supports financially or a whopping credit card debt he carries.
4) You can agree on alimony issues without fighting about them
Alimony, also called spousal support, is money one spouse pays to the other each month to help with living expenses after a divorce. Usually alimony is only awarded if one partner earns considerably more than the other. For shorter marriages, courts usually award temporary alimony for enough time to allow the lower-earning spouse to get back on their feet. If longer marriages break up, courts sometimes award alimony that continues until remarriage or death.
People often have strong feelings against alimony, but it certainly makes sense in some cases. If you negotiate a prenup, the two of you can express your general views on alimony and decide when and if it would be a good idea for your couple.
For example, if you are planning on giving up your career to have children and take care of the home, you'll definitely want to spell out alimony in a prenup. On the other hand, if you are both professionals earning good salaries and you aren't planning on kids, you may want to write a prenup that waives alimony.
5) You can be sure to keep ownership of a business
If you own a thriving business before marriage, or a share in the family business, it generally belongs to you alone even after you marry. However, you're going to have to be very careful during the marriage if you want to be sure your spouse can't claim an ownership interest in a divorce.
For example, if you own a retail store before marriage, you may continue to work in or manage the store during the marriage. Community property states will treat all income you make from this activity as community property. Likewise, if the store is worth more at the end of the marriage than it was at the beginning, the court may attribute that increase in value to your efforts. This makes that increase community property that is divided even-Steven between you and your spouse.
How to be sure you get to keep the business in case you divorce? A prenup is one way to do this.
6) You can avoid getting on the hook for your spouse's debts
You might be okay with the fact that your current true love was someone else's true love earlier in life. And you may have accepted that your partner has financial obligations to children from that relationship.
But how would you feel if that child support suddenly came out of your income? Assuming your spouse is paying child support to their former spouse for the kids, it's is based on the amount of income earned by each of the parents. But some jurisdictions consider a new spouse’s income.
For example, California courts will factor your income into the child support calculation for his kids if his income drops or he loses his job. And the law in Illinois allows a divorce court to include a new spouse's contributions to household income when awarding child support for kids from a prior relationship.
You can work around this with a prenuptial agreement stating that the money you earn is your separate property and the money your spouse earns belongs solely to your spouse. Your spouse will have a better argument that your income shouldn't count toward child support. And you won't have to worry about the former spouse trying to collect the child support from your income.
- FindLaw: Prenuptial Agreements
- FindLaw: Pros and Cons: Premarital Agreements ("Prenuptials")
- Nolo: Prenuptial Agreements: Who Needs It and How Do I Make One?
- The Wall Street Journal: Is a Prenup a Must for Most Couples?
- Justia: Marriage and Prenuptial Agreements
- American Bar Association: Premarital Agreement Issues Checklist
- DivorceNet: Divorce and Property
- Attorneys.com: Impacts of Remarriage on Child and Spousal Support