Hopefully you’ll never need to use your health care proxy or power of attorney—but if you do need them, you’ll be so glad you made them.
Think of your prenuptial agreement in the same way. No one wants to talk or even think about divorce while they’re happily engaged and planning a wedding. But not talking about it won’t keep it from happening for some couples. If you don’t have a prenup, your state’s laws may determine what you keep and what you lose. You’ll also have missed a prime opportunity to get on the same page with your future spouse about money. It’s generally preferable to hammer out the details together with your family law attorney now than to fight over assets through your divorce attorneys later.
Using Your Prenuptial Agreement to Protect Assets
Engaged clients often ask their attorneys what they can protect with a prenup. The short answer is that you can protect, or not protect, nearly anything you want. A valid prenup is legally binding, so whatever you and your partner put into it should stand up in court if you eventually divorce (though every case is different).
You can protect physical property, money and other assets that you’re bringing into the marriage so that they remain yours after divorce. Your partner can do the same with their assets. You’ll also use your prenup to decide how you’ll divide up any assets you acquire jointly in the future. Each couple’s prenup is totally individual to them. How you structure it and what provisions you include are really up to you, with your family law attorney’s guidance. The agreement can be as simple or as detailed as you want to make it.
The first part of the process is a discussion (or series of discussions) between you and your partner. Each of you will need to provide a full, detailed disclosure of what you have and what you owe. This is a chance to be open and specific about your individual finances, and to talk about your expectations about how money will work in your marriage. And, although it may not feel pleasant, this is also the time to talk about how you would divide up property if you do divorce.
It might be helpful to talk through some hypotheticals together. If the higher earner pays for 80 percent of a home you buy together, will you split the proceeds 50/50 if you sell it after divorce? Or, if one spouse already owns a home, will that become marital property or remain the owner’s separate property? And what about future earnings or assets? If one of you receives an inheritance, will it belong to both of you or remain the inheritor’s alone? Will one of you pay alimony to the other, and if so, what will determine how much alimony is paid?
By the time you sit down with your family law attorney to create your prenup, you should be in agreement about what you want to treat as marital property vs. separate property. You may also have some specific provisions you’ve agreed to include in your prenup. Putting everything down in a legal agreement is the easy part, after you’ve had the important financial conversations.
What a Prenuptial Agreement Can’t Protect
A prenup can protect money and physical property, but generally can’t be used to address matters related to children. You can’t create stipulations about child support or legal custody in a prenup, for example. These kinds of issues can’t be settled until a co-parenting couple is actually divorcing.
Best Practices for Prenup Planning
Creating a prenup doesn’t doesn’t have to be painful. It’s an opportunity for you and your partner to set the tone for how you’ll talk about money. Keep these things in mind as you move forward to have a positive experience prenup planning.
- Start early! This may be the single most important thing we can stress about prenup planning. The closer it gets to the wedding,the more your attention will be on details for your big day. Don’t let the prenup be one more stressor that keeps you up at night. Get it done early so you can enjoy this time. Ideally, you’ll start the process at least six months before the wedding.
- Make sure it’s valid. Your prenuptial agreement will only protect your assets after divorce if the courts deem the agreement is valid. The hallmark of a good prenup is that it’s fair, there’s full disclosure on both sides and there’s no indication it was signed under duress. This is another reason to start prenup planning at least six months before the wedding. Say a prenup isn’t signed until a few days before the wedding. If the couple divorces and one spouse wants to invalidate the prenup, they may argue that they signed the prenup under duress because the wedding was paid for and their spouse’s family was pressuring them to sign.
- Think of your prenuptial agreement as part of your overall estate planning process. Even if you are married until one spouse’s death, your prenup might be important for the surviving spouse. It clarifies what property you owned jointly and what property should be considered as having belonged solely to the deceased. Getting married warrants a meeting with your estate planning attorney anyway; have them review your prenup to make sure your estate plans are in alignment.
- Consider a prenup even if you’re young and/or not wealthy. There’s no wealth barrier you need to cross in order to benefit from a prenup. A young couple just starting out in their careers may not have much to protect now, but should still consider creating a prenuptial agreement. It’s the perfect launching pad for important money conversations that may feel uncomfortable but that need to happen before you enter into a marriage. And you can use your prenup to protect your future earnings and assets.
- Remember your prenuptial agreement isn’t set in stone. You and your partner can modify it later on if you collectively agree that you want to change a current provision or add something new.
Sassoon Cymrot Law, LLC helps couples prepare for whatever the future may bring. Our family law attorneys work with clients to create prenuptial agreements, cohabitation agreements and post-nuptial agreements that protect their assets and give them peace of mind. Contact us today!
