If you're planning to get married, you may be wondering whether you need a prenuptial agreement (or "prenup" for short). Before you make that decision, you should understand what a prenup is, what it can and can't do, the most common reasons couples choose to sign these agreements, and what makes a valid prenup.
A prenuptial agreement is a written contract created by two people before they're married. Typically, a prenup lists all of the property each person owns and debts they owe, and it spells out each person's property rights during the marriage and in the event that they later get divorced..
Contrary to popular opinion, prenups are not just for the rich. While premarital agreements are often used to protect a wealthy spouse's assets, couples of more modest means are increasingly turning to them for their own purposes. There are many reasons some people want a prenup, including:
Learn more about what prenups can and can't accomplish.
If you don't make a prenuptial agreement, your state's laws determine who owns what property during your marriage, as well as what happens to separate and marital property in divorce or when one spouse dies.
Under the law, marriage is considered to be a contract between the marrying couple. With that contract comes certain automatic property rights for each spouse. For example, depending on the state laws, a spouse usually has the right to:
If your state's laws on marital or community property aren't to your liking, it's time to think about a prenup. In most cases, a prenup will allow you to decide for yourselves how you'll deal with your property.
As prenuptial agreements become more common, the law is becoming friendlier toward them. Traditionally, judges scrutinized prenups with a suspicious eye, because they almost always involved a waiver of legal and financial benefits by a less wealthy spouse.
As divorce and remarriage have become more prevalent, and with more equality between the sexes, courts and legislatures are increasingly willing to uphold premarital agreements. Today, every state permits them. But judges will still set aside agreements that are unfair or otherwise don't meet state requirements for prenuptial agreements.
Because judges look carefully at prenups, it's important that you negotiate and write up your agreement in a way that's clear, understandable, and legally sound. If you draft your own agreement, both you and your spouse should have separate lawyers review it and at least briefly advise you about it. In fact, some states require this independent legal review. And even if it's not a requirement, judges are more likely to question the validity of a prenup if each spouse didn't have independent legal advice before they signed the agreement.
Before you visit a lawyer, you can begin drafting your own prenuptial agreement. Nolo's Prenuptial Agreements: How to Write a Fair & Lasting Contract shows you how to create a draft agreement that you can then bring to separate lawyers for review. It provides worksheets to help you and your fiancé determine what your prenup should cover and clauses for preparing an agreement that suits your needs, as well as lots of examples and samples to make your job easier.