If You're Thinking of Getting a Prenup…
Drafting a prenuptial agreement isn't the most romantic part of wedding planning, but experts say it could be one of the most important—and not just for the super-rich or the folks on HBO's "Succession."
"A discussion about prenups can be scary, especially when talking about the possibility of divorce before even getting married," said Zoë Martin, a divorce and family lawyer at Davis Malm Attorneys in Boston. "Think of it as putting yourself first and 'taking care of you.' It is insurance. It is more important to have a prenup and not need it than to need it and not have it. The same holds true for most insurance people buy. And it doesn't just benefit one party; it protects both. It can save a lot of time and money and prevent hostility."
What are prenups and postnups?
A prenup, also known as an antenuptial agreement or premarital agreement, is a written contract in which an engaged couple states their rights and responsibilities. Most contracts list each party's assets and debts and specify what will happen if the marriage ends in death or divorce. Other provisions can address spousal support, inheritance and child custody.
A postnuptial or postmarital agreement is similar, except it's done after the couple is married. These agreements are just as legally binding as prenups.
"The rules for executing a postnup are more stringent, but the result is the same: a document outlining what will happen to assets, income, debt, etcetera," Martin said. "Both prenups and postnups can be amended later."
Who should get a prenup?
"A prenup is a good idea for anyone who has assets that they obtained before getting married, such as a house, business, retirement account or financial assets that they would like to keep in the event of a divorce or separation," said Sandra Radna, Esq., founding attorney at the Law Offices of Sandra M. Radna in Melville, New York. "In addition, a prenup is helpful for anyone who would like to protect themselves from any social media post during or after the marriage that is negative, insulting, embarrassing or is likely to harm the other's professional reputation."
Besides brides and grooms with considerable assets, other individuals who can usually benefit from a prenup include family business owners, people with children from prior relationships, people who have been married before and anyone who has significant debt.
Some of the most common reasons for drafting a prenup include:
While it's far from the only reason, accounting for a significant wealth difference between parties is the most common motive behind seeking a prenup. If one party is substantially wealthier or expects to be during the course of the marriage—from an inheritance, for example—without a prenuptial contract, the spouse might be entitled to half the wealthier party's assets in the event of death or divorce. If a prenup is in place, the more affluent partner can stipulate a specific percentage or set sum to be paid out.
People who have been divorced may be wary of leaving their financial future to chance, particularly if the previous split wasn't amicable.
Children from previous marriage(s)
Individuals with children from previous relationships might likewise want a prenup to protect their kids' financial interests. For instance, a parent might create a living trust or will to ensure their children are taken care of if they die. Without a prenup, the surviving spouse might have a claim to a substantial part of the deceased's estate, leaving much less for the children.
Prenuptial agreements can protect a spouse from being responsible for their partner's debts. Typically, individuals pay off any debts they incur before tying the knot. However, that's not always the case, and creditors can collect premarital debts from the joint property of the marriage unless a prenup specifies otherwise. The contract can also allocate responsibility for debts incurred during the marriage.
Stakes in the family business
If one or both parties own a business or have a substantial stake in a family enterprise, a prenup might be wise. Otherwise, divorce can affect shares and the business itself.
"An entrepreneur who enters the marriage with an established business might specify that the business will remain a separate asset," said Brent Kaspar, Esq., founder and managing partner at the law firm Kaspar & Lugay, which has several offices in California. "But if the person is a serial entrepreneur who starts one or more new businesses during the course of the marriage, they will have to decide what portion, if any, of those newer businesses will be part of the marriage's shared assets."
Prenuptial agreements can specify that neither party shall disclose information about their partner or the marriage without the other person's written consent. These clauses can prevent spouses from airing their dirty laundry on social media or, in the case of celebrities, releasing a tell-all book or juicy album, actions that might damage the other party's reputation, career or current and future relationships. Disparaging an ex or being blasé about online activities can affect various aspects of a divorce, including asset allocation, in part, because denigration can affect a person's reputation and earning potential, according to Kelly Frawley and Emily Pollock, matrimonial and family law attorneys at New York-based firm Kasowitz Benson Torres.
As a rule of thumb, their advice is not to post anything, even privately among your close friends, that you wouldn't want a judge to see.
What to include in a prenup
"A fundamental part of a prenup is preserving the assets that you had prior to marriage as your separate assets that cannot be divided in a divorce," said Holly Davis, founding partner of Austin, Texas-based firm Kirker Davis. "One of the sole purposes of a prenup is to give you a clear idea of what assets would be given to you in a divorce and what assets would be given to your spouse. Prenups can get very creative. You can create all sorts of provisions that match your goal and your spouse's goal."
Like every couple, every prenup is different, and to be effective, it should be tailored to you and your betrothed's specific needs. While still relatively rare, "lifestyle" clauses are becoming more common. These terms typically assign penalties for certain morally questionable or dangerous behaviors, such as infidelity or drug use. However, they can pertain to anything from chores and pet custody to frequency of sex.
"Anything that is not void as against public policy can be included in a prenup, but that does not guarantee enforceability," said Carolyn "CiCi" Van Tine, partner and divorce attorney at Davis Malm Attorneys.
"A prenuptial agreement can be as complex and nuanced as you want it to be, but the best and most useful prenups are clear and straightforward and not subject to conflicting interpretations," Kaspar said. "The more conflicting views there could be on what it means, the less useful it could be."
To determine what to include in the contract and whether you need one in the first place, Van Tine advised couples to meet with separate lawyers for prenuptial consultations before their wedding day, if not before getting engaged.
What happens if you don't have one?
Drafting a prenup might seem complex and expensive—anywhere from $1,200 to $10,000 or more—but separating without one could prove much more costly.
"Without a prenup, a person could lose 50 percent or more of their assets, pay 50 percent or more of their spouse's debts, and pay 30 percent or more of their income in alimony," Van Tine said. "The money saved by the simple act of having a prenup is staggering."
Alimony, or spousal support, refers to court-ordered financial support paid by one spouse to the other to ensure the latter can maintain a reasonable quality of life post-separation. Typically, courts consider any earned income, along with recurring passive income, to determine the amount of spousal support to be paid.
When people separate without a prenup, Davis said they must either mutually agree on how to divide their assets or leave it to a judge to make that call.
"With a prenup, you get to control the rules of the game and the outcome," Davis said. "In a divorce, you are subject to the changing emotions of the spouse you are divorcing and the unpredictability of a judge."
How to broach the topic
Some people perceive a prenup as an expression of distrust, making it a stressful and potentially contentious topic. However, Martin and others said considering disagreements over money are among the leading causes of divorce, having this discussion sooner rather than later can strengthen the union.
"When you are dating someone and you've passed the fun and exciting, fresh and new stage and are finally in the serious stage of discussing moving in together, that's the perfect time to discuss everyone's comfort level with money," Davis said. "After discussing financial goals or expectations, it's also a good time to talk about work goals. Will you both plan on working? Is someone dreaming of retiring at 35? Does someone want to stay at home with kids instead of work?
"When you talk about work goals and dreams, it's a good time to talk about funding all of it. And that's a good time to discuss a potential prenup," she continued. "If you're thinking about it, you should talk about it. The sooner you know if the concept is offensive to the other side, the sooner you can ask them why and evaluate your individual levels of trust and expectation.
"I get it," Davis added. "This is hard stuff to talk about on a date night. But wouldn't you rather know the truth sooner rather than later?"