Obtain a Prenuptial Agreement

If you're on your way to getting married, you might be concerned about what will happen if things don't work out. You might also be worried that your partner will interpret your contingency planning as an expression of pessimism or distrust. A proper prenuptial agreement, however, can not only save you from a messy divorce; it can also provide some valuable insights into you and your partner's financial compatibility. While it is advisable for both you and your partner to each have a lawyer draft—or at least review—your prenuptial agreement, it is possible to draft one yourself.

Steps

Deciding If You Need a Prenuptial Agreement

  1. Understand what a prenuptial agreement does. Put simply, a prenuptial agreement is a legal contract that outlines what each person entering into a marriage has before the marriage is official, and what each person would take out of the marriage if it were to end due to either death or divorce.[1] Normally these decisions are made by the state in which you live. However, a valid prenuptial agreement puts this decision in the hands of you and your partner.[2]
  2. Consider getting a prenuptial agreement if you and your partner currently have different financial situations. For example, if you make considerably more income, possess a greater amount of assets, or have significantly less debt than your partner, it may be in your best financial interest to get a prenuptial agreement before you and your partner are officially married.[1]
    • For example, if you will be receiving a large inheritance, a prenuptial agreement can help ensure you retain ownership of these assets instead of them being part of shared marital property.
    • Alternatively, if your partner is liable for a large debt, a prenuptial agreement can protect you from being subject to your partner's creditors.[3]
    • If you do not currently have any major financial assets, but expect to earn an increased amount of income during your marriage, or if you are pursuing an educational degree in a highly lucrative profession, you should still consider filing a prenuptial agreement.
  3. Consider getting a prenuptial agreement if this is not you or your partner's first marriage. Prenuptial agreements can outline who will pay the expenses for children from previous marriages.[1] Therefore, such an agreement can be useful in this situation to make clear who will be responsible for providing for such children, in addition to outlining how assets will be allocated in the event of death or divorce.
    • Be aware, however, that certain expenses—such as paying for college using federal financial aid—still require both parents to be financially involved regardless of the existence of a prenuptial agreement.
  4. Consider getting a prenuptial agreement if you or your partner own a business. A prenuptial agreement in this situation can serve two purposes. First, it can protect the assets of the person who owns the business in case the marriage ends. Second, it can protect the person who does not own the business from incurring any liability resulting from the operations of that business.[1]

Preparing to Draft the Agreement

  1. Hire an attorney. Prenuptial agreements must be professionally drafted in order to ensure they do not run afoul of state law. Therefore, it is very important that you and your spouse each hire your own attorneys. If both parties are represented by the same attorney, it will be seen as a direct conflict of interest, which may affect the viability of your agreement.
    • To find an attorney ask friends and family for recommendations. If they do not have any recommendations, you should look at your state bar's website, which will often have a lawyer referral service or a list of qualified attorneys. When you are choosing an attorney, find one who specializes in marriages and prenuptial agreements.
    • Once you find some potential candidates, sit down with them for an initial consultation. During this consultation you should ask the attorney about their background and experience in dealing with prenuptial agreements. Make sure you feel comfortable with them representing you.
    • When you find the right attorney, hire them and make sure you get your fee arrangement in writing.
  2. Have a conversation about finances with your partner. Prenuptial agreements usually come down to money, so you and your partner should talk openly about your respective finances, and what will happen to each person's money and assets once the two of you are married. Even if you don't end up drafting an actual agreement, getting this information out in the open will provide a strong foundation of trust for your marriage going forward.
    • Be sure to touch on all the financial issues that may affect your future marriage, including: current assets and debts, credit ratings, shared expenses, whether you and your partner will maintain separate bank accounts, what you and your partner's financial goals are, whether one of you will stay at home with the children or if you will both work, etc.[4]
    • Try beginning the conversation with a financial issue both of you share: "Hey, so I was looking over some bills today, and I realize I still have a ways to go in paying off my student loans. What do yours look like?"
  3. Have this conversation as early as possible. It is best to have this conversation well in advance of the marriage to give both you and your partner plenty of time to be honest with each other and reach an understanding in a calm, logical manner.[5] Even if you're not sure if you want such an agreement, or you're not clear on the terms yet, it's important to let your partner know that it's on your mind.
    • A good time to bring it up is when you're already talking about money, as mentioned in the previous step.
    • You can also start the conversation by discussing a television show, movie, news story, or a divorce that someone you know is going through: "What a mess. I think you should be able to keep whatever you had before you got married. What do you think?"
    • If you are attending religious counseling as a couple prior to your marriage, try including a conversation about your finances and how you will support each other during the course of the marriage as a way to broach the subject of a prenuptial agreement[6]: "My mother left me a sizable inheritance. I'd like to keep that separate from our shared finances so we can use it if one of us gets sick or as a college-fund for our future children. That way, we don't have to worry about saving as much of our regular income. What do you think?"
  4. Keep the conversation professional. Prenuptial agreements center around how to handle certain finances: the income each partner makes before marriage, prior assets, property acquired during the marriage, retirement plans, and how you will support each other.[6] Instead of framing the conversation around the looming possibility of divorce, try sitting down with your partner and planning your financial future as a couple, which includes both past, present, and future assets and income.
    • This way, you can discuss this subject as something you are doing together for the benefit of both of you (and any children involved), rather than as a contingency plan in case your marriage fails.
    • Focus on reasons other than a possible break up for the reason you want the agreement: "So, I have student loans that I will have to pay off over the next ten years. I have some money saved up, and I'd like to keep that aside from our shared finances in case I ever need emergency funds to keep making regular payments. I don't ever want you to be liable for my debt. Does that sounds good to you?"
    • You can also consider utilizing the services of a mediator who specializes in prenuptial agreements.[6] This will provide a controlled, non-judgmental environment in which you and your partner can sort out the details without the formality of a lawyer present.
  5. Be honest. It might not be the most romantic conversation you and your partner ever have, but it's important in a healthy relationship to be able to discuss your fears and concerns.
    • If you anticipate your partner getting defensive, emphasize your own vulnerability. Conversely, try not to get defensive yourself. Chances are one of you makes more money than the other, but it is almost certain both of you work hard at what you do.[6]
    • You might also explain that it's not the commitment or marriage that you're questioning; it's the legalities of the "contract" you're figuratively signing when you get married. In other words, you don't agree with your local marriage/divorce laws, and wish to draft your own version to make the laws suit your particular needs.[7]
    • Encourage your partner to think about his or her own assets and future as well.
    • Try to keep the tone light. You two are in love, after all.
    • "I love the fact we're both gainfully employed—big change from the days I was delivering pizzas and living off government macaroni & cheese, right? Now that the universe has decided to give me a win, and I'm making good money now, I think I'd like to set some aside in a separate account to take care of my parents. Would you be alright with that?"
  6. Get your partner to agree to having a prenuptial agreement. At this point, both of you should have a good understanding of each other's financial situation and, during these conversations, you should also have gotten an idea of your partner's willingness to commit to a formal legal agreement. If your partner still seems unsure, you will want to try to get them to understand that the legal agreement in no way affects how you feel about them.
    • Reiterate that it will protect your partner as well: "I don't want you ever to be responsible for money I owed before I met you. This document will make sure this happens. It also allows you to put some money aside for things that come up in your life."
    • Make your reasons clear: "This isn't because I don't trust you, I just want to make sure our parents/our children/our future is protected."
    • Paint the agreement more as a financial plan than as an escape valve: "We're starting this life together, I'd just like to have a financial roadmap in place so we know exactly where we stand now—and where we need to go—to achieve our mutual dreams. I was never good with my money, but now that we're together I'd like to start."
    • If your partner remains reticent, you will have to assess the benefit of pushing them against the cost of alienating them or starting your marriage off on the wrong foot.
  7. Make a list of each person's assets, debts, income, and expected future gains. Be sure each person fully and accurately discloses all relevant financial information. Not only should you do this to be honest with each other, but failing to do so could render any prenuptial agreement invalid if challenged in court.[8] You will use this information to draft your prenuptial agreement.
    • When it doubt, disclose.

Drafting the Prenuptial Agreement

  1. Research your state's laws. Every state has specific laws surrounding whether prenuptial agreements are allowed and, if so, what types of things cannot be included in them. Generally speaking, you cannot include any of the following in a prenuptial agreement:
    • Restrictions on child support, custody, or visitation;
    • Giving up rights to alimony;
    • Encouragements to divorce; and
    • Rules about non-financial matters (e.g., who will do chores, whether you will have pets, who will take the child to school).[9]
  2. Provide a thorough description of each asset in your prenuptial agreement. This will help identify each asset properly in the event you become divorced and the prenuptial agreement is reviewed in a court of law.[10]
    • Include locations and addresses of all your properties; bank account names and numbers; the make, model, and year of any vehicles you own; and explicit descriptions of any valuable belongings in your possession, such as cuts of diamonds on jewelry, or the names of artists for paintings you own.
  3. Enter any existing debts you have into the prenuptial agreement. Since you are filing a prenuptial agreement, both parties must disclose all their financial assets and debts in the event the agreement is challenged in court.[3]
  4. Define the property that will be kept separate. Each person will bring into the marriage their own property and/or assets. In your prenuptial agreement, you should identify the specific property that will remain in the sole possession of its original owner in the event the marriage ends.[2]
    • Also consider what will happen in the event an asset increases in value over the course of a marriage (i.e., if the value of your collectible car appreciates dramatically in value over the course of the next ten years).[8]
    • Be as specific as you can when referring to each asset. There should be no room for confusion regarding the property to which a particular provision of the agreement refers.
    • Include assets or provisions that deal only with finances and property, such as businesses, vehicles, homes, valuable jewelry, antiques, properties you own, savings accounts, stocks, and inheritances.
    • Be sure to keep separate property in the original owner's name only throughout the duration of the marriage, or this may override the prenuptial agreement.
    • For example, "The following shall constitute the Parties' Separate Property: The property listed on Schedule A as [Partner 1's] property and on Schedule B as [Partner 2's] property, which schedules are annexed hereto and made part hereof."[11] The "schedules" would be separate, attached documents that detail specific property for each person.
  5. Define the property that will be shared. After you have decided which property to keep separate, you can also identify in the agreement the property that will be shared between both partners during the marriage.[2] This is called marital property.
    • You should also detail how assets acquired over the course of the marriage will be divided in the event the marriage ends.[12]
    • For example, "The following shall constitute the Parties' Marital Property: All property acquired during the marriage until the occurrence of a Termination Event [divorce, separation, annulment, etc.] that is not Separate Property as set forth in the previous section [that details specific property that will be kept separate]."[11]
  6. Define how existing debts will be paid. Also consider what will happen with any debts that either person brings into the marriage. The agreement can provide that a person is solely responsible for debts he or she brings into the marriage, or it can provide that certain debts will be paid for with marital property.[8]
    • For example, "Obligations [debts] of a party incurred prior to the marriage shall remain the separate obligations of that party. The other party shall not be liable for those obligations, and shall be indemnified and held harmless from them by the responsible party. Such existing obligations shall be paid from the separate property of the responsible party."[13]
  7. Define any financial support. You can also use a prenuptial agreement to establish how a partner will survive financially if he or she will be staying at home to take care of any children.[2] It can also outline any financial support, if any, that will be paid by either person to the other in the event of a divorce.
    • For example, "In the event of a legal separation, divorce, or annulment, the parties agree to waive any rights to spousal support or maintenance of any kind to which either might otherwise be entitled. The parties agree that this provision may be entered as a complete defense by either party in response to an action for alimony."[13]
    • This is also a good time to include provisions relating to children from previous marriages, if this situation applies to you. The agreement can detail what support will be given to any minor children in the event of a divorce.[2]
  8. Define what will happen to the marital residence. This is a particularly contested issue in the event of a divorce.[8] It will be helpful to decide now what will happen to the home you and your partner share if the marriage ends. Think about who will get it or, if it will be sold, how the proceeds from the sale will be divided.
    • For example, "In the event of a Termination Event: The marital home shall be placed on the market for sale within one year from the date of the Termination Event and the net proceeds of the sale shall be distributed in accordance with the terms of this Agreement. [Partner 1 or 2] has the right to remain in the marital residence up to one (1) year following a Termination Event."[11]
  9. Define how finances will be handled during the marriage. You can also include provisions in the prenuptial agreement relating to how large purchases will be made, who will handle shared finances, who will pay household bills, and if you will maintain separate or joint bank accounts.[12]
  10. Define how taxes will be handled during the marriage. In the prenuptial agreement, you can outline how you and your partner will pay any taxes either of you owe.[12] For example, you can decide whether you will file jointly or separately, or what will be done about pre-existing tax debt for which either person is liable.
  11. Define how property will be allocated in the event of a divorce. While divorce is by no means an eventuality for you and your partner, one of the major benefits of having a prenuptial agreement is avoiding argument in the case of a divorce. In your agreement, detail how property will be divided in the event of a split, otherwise the law of your state will decide for you.[9]
    • For example, "In the event of a Termination Event: Each Party shall retain his or her Separate Property, and the other Party agrees not to make any claim in or to such property. Except as otherwise provided in this Agreement, all Martial Property shall be divided between the Parties in accordance with [state law]."[11]
    • Be aware that while you can attempt to include provisions relating to alimony in the agreement, not all states allow this.
  12. Decide how long you want the prenuptial agreement to last. The prenuptial agreement does not have to last forever. You can indicate how long you want it to last using what is known as a "sunset clause" to specify a future date on which the agreement is no longer valid. In addition, you may choose to outline any conditions that relate to who ends the marriage or why the marriage ends.[12]
    • You can also detail when and how the prenuptial agreement can be renegotiated at a later date.
    • For example, "This Agreement may not be amended or revoked except by an instrument in writing signed by both of the parties and acknowledged and witnessed with the same formalities of this Agreement, expressly modifying or revoking one or more or all of the provisions of this Agreement."[11]
    • Be aware, however, that states are not likely to give much weight to any sections of a prenuptial agreement that mandate certain consequences for a person based on his or her degree of "fault" (like having an affair).[12]
  13. Make sure the agreement is fair to both people. While courts presume prenuptial agreements to be legal, they can be challenged and thrown out if they do not protect both people adequately. After you have drafted the agreement, make sure to keep the following in mind while finalizing it:[2]
    • Make sure each person has fully disclosed all assets and debts.
    • Make sure neither person has pressured the other to sign, and that each person has had enough time to fully consider the agreement before signing it.
    • Make sure the agreement considers each person. Don't try to take advantage of the other person or try to leave them with less than they deserve if the marriage ends.
    • Make sure both people have an opportunity to have their own lawyer read it before they sign.[8]
  14. Make the prenuptial agreement official. Though the requirements vary by jurisdiction, a prenuptial agreement is a legal document and therefore you must meet certain conditions for the document itself to be legally valid:[14][15][16]
    • It should be in writing.
    • It should be dated and signed by both you and your partner.
    • Some states require one or two witnesses to the signing of the document.
    • Both you and your partner should visit a notary public in person, each testify to the document's authenticity, and then get the document officially notarized.
    • Make sure you have at least three copies for your records—one for each person and another to give to a third-party or save in a shared secure location.



Tips

  • The requirements for a prenuptial agreement vary widely based on your particular jurisdiction. It is best to talk to a lawyer with experience in family law in your state during this process to make sure your prenuptial agreement is legally valid.[17] This lawyer might also have ideas about what to include in your agreement that you may have failed to consider.
  • It is strongly advised that both you and your partner retain separate legal counsel to, at the very least, review the prenuptial agreement before it is executed.[18] This is a factor courts consider when judging the validity of a prenuptial agreement.[3]
  • Prenuptial agreements are valid in all 50 states and in the District of Columbia.[8]
  • A court is much more likely to consider your prenuptial agreement valid if you at least have a lawyer look at it and review it for validity after you and your partner finish drafting it.[3]
  • Based on your circumstances and attitude towards each other, you and your partner might want to have two sections in your prenuptial agreement—one that takes effect in the case of death, and one that takes effect in the case of divorce.[5]
  • Consider adding a mediation clause to your prenuptial agreement, allowing for both you and your partner to partake in third-party mediation to settle any disputes that may arise during the marriage or divorce, rather than immediately getting the courts involved.[12]
  • If you and your partner are relatively young, getting married for the first time, and currently posses little assets/debts with little chance of future inheritances, you probably don't need a prenuptial agreement.[19]

Warnings

  • Seeking to obtain a prenuptial agreement can potentially place a lot of stress and anxiety on your partner, who might feel that you lack sufficient trust in him or her. Be sure to take your partner's feelings into account during this process.
  • You cannot include provisions relating to child support or child custody/visitation in a prenuptial agreement.[2] In the event of a divorce, a court must resolve these issues based on the facts and circumstances as they exist at the time of the divorce.
  • Don't include non-financial provisions in your prenuptial agreement. This agreement is not the place to discuss personal matters, like who will be responsible for chores, how you will raise your children, or whether or not you can have a dog.[9] These types of provisions are not enforceable, and will make your whole agreement look weaker than if you kept strictly to financial matters.

Related Articles

Sources and Citations

  1. ↑ 1.0 1.1 1.2 1.3 http://articles.latimes.com/2011/apr/24/business/la-fi-perfin-20110424
  2. ↑ 2.0 2.1 2.2 2.3 2.4 2.5 2.6 http://www.nycbar.org/get-legal-help/article/family-law/marital-agreements/prenuptial-agreements/
  3. ↑ 3.0 3.1 3.2 3.3 http://www.nolo.com/legal-encyclopedia/prenuptial-agreements-overview-29569.html
  4. ↑ http://www.nolo.com/legal-encyclopedia/prenuptial-agreement-right-you-29652.html
  5. ↑ 5.0 5.1 http://www.aarp.org/money/estate-planning/info-02-2012/prenuptial-agreement.html
  6. ↑ 6.0 6.1 6.2 6.3 http://www.businessinsider.com/10-ways-to-bring-up-a-prenup-without-getting-dumped-2012-1?op=1
  7. ↑ http://family.findlaw.com/marriage/how-to-determine-if-a-prenuptial-agreement-is-right-for-you.html
  8. ↑ 8.0 8.1 8.2 8.3 8.4 8.5 http://www.hg.org/article.asp?id=5364
  9. ↑ 9.0 9.1 9.2 http://www.nolo.com/legal-encyclopedia/prenuptial-agreements-what-law-allows-30283.html
  10. ↑ https://www.lawdepot.com/law-library/prenuptial-agreement-faq-united-states/#question0_1
  11. ↑ 11.0 11.1 11.2 11.3 11.4 https://www.theknot.com/content/prenuptial-agreement-sample-form-mistakes
  12. ↑ 12.0 12.1 12.2 12.3 12.4 12.5 http://www.americanbar.org/publications/gpsolo_ereport/2012/march_2012/premarital_agreement_issues_checklist.html
  13. ↑ 13.0 13.1 http://www.prenhall.com/divisions/ect/app/wilsonlaw/M02_WILS3688_01_SE_C02.pdf
  14. ↑ http://www.sgrlaw.com/resources/newsletters/new-york-court-of-appeals-decisions-updates/fall2013-2/formalities-of-acknowledgment-in-prenup-enforced/
  15. ↑ https://www.legalzoom.com/articles/pre-nuptial-agreements-101
  16. ↑ http://www.forbes.com/sites/jefflanders/2013/04/02/five-reasons-your-prenup-might-be-invalid/
  17. ↑ http://family-law.lawyers.com/divorce/drafting-a-prenup.html
  18. ↑ http://nationalparalegal.edu/public_documents/courseware_asp_files/domesticRelations/ContractsMarraige/PremaritalAgreements.asp
  19. ↑ http://www.wsj.com/articles/is-a-prenuptial-agreement-a-must-for-most-couples-1425271056
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