Prenuptial Agreement Benefits and Drawbacks

A prenuptial agreement—which is a legally binding contract that determines how spouses will divide assets and debts in the event of a divorce—isn't just for the wealthy, or those with many assets. More couples are using prenups now than ever before.

If you're curious about whether a prenup is right for you, or if you're considering signing your fiance's proposed prenup, it's helpful to consider the pros and cons of a premarital agreement.

What Are the Benefits to a Prenuptial Agreement?

Here are some of the most common benefits of creating (or discussing) a prenuptial agreement.

Communication

Considering a prenup is one of the best ways to open a line of dialogue in your relationship. Talking about a prenup may seem daunting or even scary, but being open and honest about property, finances, and each of your expectations before the wedding may be one of the most beneficial aspects of the process. Even if you and your spouse talk about the contract and never draft it, you're starting your marriage off with an open line of communication and a level of trust that can keep your relationship afloat for many years.

Save Time and Money

Divorce can be expensive and time-consuming. You do have the option of reaching a marital settlement agreement when you're getting divorce. But by then, the problems in your relationship could make it difficult to cooperate and trust each other enough to negotiate a fair agreement.

If you can't work out a complete settlement agreement by the time you file for divorce, you could end up spending a lot of money on attorneys' fees to get through the divorce process. And if your lawyers can't manage to help you negotiate a settlement at some point, it will cost even more and take longer to go to trial.

A properly drafted prenup allows couples to address the most common legal hurdles in divorce before they reach that point—presumably when they're still in love and not fighting. Then, when they do divorce, the prenup can help them get a quick resolution to the issues in their divorce and avoid a lengthy and costly court battle.

Protect Your Separate Property and Family Heirlooms

One of the most contentious areas of divorce is when it's time to divide assets and debts. We often like to think "what's mine is yours and what's yours is mine" as the marriage motto, but when it comes to divorce, most couples disagree on who should walk away with specific property.

A divorce judge's first take is usually to identify and categorize the couple's property as separate or marital and then divide it between them. A prenup can be especially helpful if you enter the marriage with family heirlooms or other property that you wish to keep separate. Couples can specify what property belongs to each spouse and how they'd like to handle distribution of the assets if they divorce later.

Define What Qualifies as Marital Property

When you get divorced, your marital property will be divided—either in the way you and your spouse agree at the time or by a judge, according to your state's laws. Most states uses "equitable distribution" rules, meaning that judges divide marital property fairly between the spouses. The laws in community property states presume that every asset acquired during the marriage belongs equally to both spouses. In some (but not all) of these states, the judge will then divide the value evenly between them.

A prenup can help couples avoid a bitter and lengthy property battle by defining what qualifies as marital property and how you'd like to divide it in the divorce. Some couples believe that a 50/50 split would be best, but an unequal distribution may be more appropriate for others. One of the most beneficial aspects of a prenup is that you and your spouse can decide how you'd handle it. If you later divorce, a judge will respect your wishes, as long as your agreement meets all the requirements in your state for prenups.

Protect Yourself from Debt

Along with accumulated assets, a judge will split marital debt and other liabilities in the divorce. If your spouse comes to the marriage with an extensive amount of credit card or other loan debt, a prenup will allow you to define the liabilities as your spouse's separate debt and detail how you will handle it in a divorce.

What Are the Drawbacks to a Prenuptial Agreement?

Although there are many advantages to drafting a prenup, it's important for you to understand the potential drawbacks before you agree to sign the contract.

It's a Romance Killer

Let's face it; a prenup is not romantic. Proposals and thoughts of a fairytale ending often bring up images of romantic dinners, hand holding, and walks under the stars. There's no better way to kill that vibe than by bringing up the potential for a future divorce. Although marriage is a partnership that goes beyond romance and includes serious issues such as property and finances, for some couples, discussing these matters might put a blemish on this exciting time.

Be sure to carefully consider the right time and place to discuss a prenup, and don't wait until the wedding invitations have already gone out to bring it up. Not only is that unfair to your future spouse, in many states, if you spring a prenup agreement on your fiancé just before the wedding, and it's signed under pressure, a court may find the contract to be invalid, because your spouse didn't have sufficient time to carefully consider the terms.

It Might Be Unnecessary

In most states, divorce laws may already accomplish your goals for property division. For example, if your state requires a 50/50 split of marital property and that's the outcome you prefer, a prenup is probably unnecessary. Just make sure understand your state's laws on property division in divorce before you tie the knot. It's also a good idea to speak with a family law attorney to make sure you understand the potential consequences if you decide to skip a prenup.

There are also some matters that you can't resolve in a prenup, like child custody, parenting time, and child support. If you're not concerned about how the court will divide property or debt, and your only worry is who the judge will designate as the custodial parent to your future children, a prenup is unnecessary. Courts retain authority to decide custody and child support—you may not predetermine these issues in a contract.

It Can Be Unbalanced

It's easy to have tunnel vision in the beginning of a relationship. Many spouses sign a prenuptial agreement thinking, "I'll never get a divorce, so what does it matter?" It matters because if you sign a prenup that favors your spouse, you may walk away from the divorce with less than what you deserve. If you want to make sure your prenup is fair, the key is for both of you to hire independent attorneys to review the document before you sign it.