Prenuptial Agreements: Everything You Need To Know About The Prenup

When you get engaged, the last two things you want to think about are getting divorced or the sudden, unexpected death of your future spouse. But since life is unpredictable, planning for your financial future in case the worst happens can really save you in the long run. 

This is why it’s crucial to have the prenup conversation with your partner before you say those wedding vows. Even if you decide that you don’t need a prenup, being able to talk frankly about money is a pre-marriage necessity.

Here’s what you need to know about getting a prenup, why you might need one and how to actually start the conversation with your partner. 

What Is A Prenuptial Agreement?

A prenup, also called a prenuptial agreement or antenuptial agreement, is a written contract between you and your future spouse in which you lay out each person’s rights and ownership to their assets and debts. Prenuptial agreements outline what is considered marital property (also known as community property or shared assets) and separate property, and can cover anything from debt liability to family business assets, retirement benefits to property division. 

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The reason to draw up a prenup, or premarital agreement, is to create a plan for what should happen to premarital property in the event of a divorce or death of your partner. The prenuptial contract basically lays out a plan for how assets and debts should be handled. 

Who Needs A Prenup?

From a legal perspective, everyone could benefit from having a prenuptial agreement. If you and your partner don’t get a prenup, the laws of your state will decide what happens to your assets in the event of divorce or death. California law, for instance, dictates that all income, debt and property acquired during a marriage is considered community property and are all equally co-owned by married partners.  

Another reason to get a prenup is to avoid a contentious divorce. Having everything spelled out in a marriage contract can keep you from having to waste thousands of dollars in legal fees to hammer out who is entitled to what marital assets. While engaged couples usually don’t like to think about divorce, being realistic and proactive can lead to an honest, successful marriage. 

Here are a few other more specific reasons to consider getting a prenup:

One or both people have children from a previous relationship

If you or your future spouse has a child already, you may want to draw up a prenup in order to protect assets that should funnel to your child or to create a trust to ensure that they would be taken care of, especially if you were to die unexpectedly. A prenup can also protect any spousal support or assets you received from a previous marriage, as laid out in your divorce decree.

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While a prenuptial agreement is not an enforceable document when it comes to child support or custody, the document can legally spell out what should happen with pets in the event of divorce or death of one or both people. 

One person is wealthier or has more debt

Premarital agreements can help protect pre-marriage assets if one spouse is significantly wealthier than the other, or if their family has a great deal of money. If one person has more debt, a prenup can also ensure that the person in the red will be responsible for those bills should the couple divorce. Additionally, prenuptial agreement could outline that both people are responsible for any debts they incur separately during the marriage, which can be helpful if one person is a spender or has a tendency to rack up credit card debt. 

One or both people have a business

If you or your future spouse has a pre-existing company, it’s important to get a prenuptial agreement in order to protect your business assets. This is particularly necessary if you have business partners or are involved in a family business, since you wouldn’t want other people to suffer financially if you and your spouse end up getting divorced. 

One or both people expect an inheritance

Money you get via an inheritance is typically considered non-marital property if said inheritance comes your way before you’ve tied the knot. Depending on where you live and the laws in your state, an inheritance can become community property if you put that money into an account that also contains assets you acquired during your marriage. Any account—not just a joint account that your partner also has access to or their name on. So if you know that you will be getting an inheritance, spelling out the details of ownership may be wise. 

How Do You Get A Prenup?

While in some states, like California, couples can write their own prenuptial agreement, it’s advised to seek legal counsel—matrimonial lawyers specifically—so that the document you create is legally enforceable.

Typically, the person with more assets (as in, more wealth to protect) will work with a family law attorney to draw up the initial document. Then, the other person will review it with their own separate lawyer (yes, you should have separate attorneys).

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It’s wise to start the prenup process as soon as you can after you get engaged so that it’s not a source of stress leading up to the wedding day. Depending on your families of origin and your respective financial situations, drafting and agreeing to a prenuptial agreement could take longer than you think. 

Getting A Prenup Vs Postnup

If you and your partner didn’t get a prenup but wish you did, you could get a postnuptial agreement instead. Postnuptial agreements are contracts outlining financial assets that are drafted after you’re legally married. Couples might do this if their financial situation changes and they acquire significant marital assets. Perhaps they win the lottery or sell a company, for instance.

The major difference between a prenup and a postnup is that a prenuptial agreement is considered valid and legally enforceable upon marriage while a postnuptial agreement will likely be examined in court and it will be up to the legal system if it’s really enforceable.  

Having the talk

Although the idea of bringing up prenups could feel super stressful, drafting this a prenuptial contract is important for avoiding financial issues down the road. Getting a prenup also forces partners to have a serious money talk before they get married–which is important for every couple to do anyway. 

So what’s the best way to start the prenup conversation? Choose a time when you are both relaxed and not stressed about the wedding, work or life in general. If it helps, you might choose a day and time together that makes sense for having this talk when you know that you won’t be disturbed or distracted. If the conversation gets heated or overwhelming, reading some relationship quotes can help you get back into a more loving mood.

Once you have the prenup conversation behind you, you and your partner can go back to the fun parts of wedding planning, like deciding if the best man speech should happen during dinner or dessert or what your first dance song should be.

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