Prenuptial Agreements: What Does the Law Allow?

Understand what you can accomplish by making a prenuptial contract before you marry.

By , Attorney · Cooley Law School

What Is a Prenuptial Agreement?

A prenuptial agreement is a contract that two people enter before they get married. Any couple contemplating marriage can enter into a prenup if both parties agree to all of its terms. The main goal of most prenups is to establish rules and guidelines for splitting assets and debts should the marriage end in divorce.

Every state has its owns laws on what you can and can't include in your prenup agreement, so before you sign, make sure you check with an experienced attorney in your state to verify that your contract is valid.

What Can You Accomplish With a Prenuptial Agreement?

It's no secret that the divorce process can be emotional and costly. For couples who wish to reduce the expense and turmoil that typically accompanies the legal process, you can include some or all the following specific provisions in your prenuptial agreement.

Identify and divide separate and marital assets

When couples divorce, one of the first tasks is to identify and allocate separate and marital property. Separate property includes the assets a spouse owned before the marriage or which were acquired through a gift or inheritance. Marital property includes assets the spouses acquired during the marriage. Typically, if you can prove that you owned the property before you got married, it will remain your separate property, and the court won't award any of it to your spouse.

There are two ways courts can divide marital property. In community property states, courts generally split marital assets equally, using a 50/50 split. In equitable distribution states, judges divide marital property in a way they believe is fair, depending on the individual circumstances of each case—this method doesn't always result in a 50/50 split. Courts consider a variety of factors to determine what would constitute an equitable division.

Prenuptial agreements are an excellent way to help couples avoid a lengthy battle over physical property if the relationship ends in divorce. When properly drafted, the contract can identify each spouse's separate property and confirm how it will be treated upon divorce. You can also decide how you'll split your marital estate in advance. For example, if you want each spouse to receive 50% of the marital assets, you can put that agreement in writing, rather than leave it to a judge in the event you divorce.

Identify and allocate separate and marital debts

There's no doubt that money troubles can be the cause of many divorces. If you and your fiancé want to avoid falling into the same trap that many do, you can add a provision to your prenuptial agreement to address debt. The essential component of a fair and valid prenup is full disclosure—both parties should complete a financial disclosure statement, identifying all of their assets and debts. They should also attach a copy of this to the prenup contract.

Like assets, your agreement should identify separate and marital liabilities and how you will divide each debt. Prenuptial agreements are especially helpful if one spouse brings a significant amount of debt to the relationship. If you'd like to ensure that you won't be responsible for your partner's poor credit habits from college, you can include a provision about this in your prenup.

Spousal support concerns

It's common for one spouse to earn more than the other or for one to stay home and raise children rather than follow a typical career path. Depending on the length of your marriage and your state's divorce laws, the lower-earning spouse may be entitled to financial support from the other.

Spousal support can include temporary or long-term payments, and the amount depends on what the judge decides, which might not be the best plan for you and your family. If you'd like to avoid the uncertainty of a judge's discretion, you can include a provision covering spousal support in your prenuptial agreement that will financially protect you if you get a divorce later.

If you earn significantly more than your spouse before the marriage, you can add a provision that limits spousal support later. Keep in mind that all prenuptial clauses are subject to a judge's review, so if your agreement isn't fair or seems retaliatory, the court could eliminate the provision.

Special considerations if you have children from a previous marriage

If you're remarrying and either spouse has children from a previous marriage, your prenuptial agreement should include a provision that will ensure that your children can inherit their share of your estate in the event of your death, if that's what you intend. In a prenup, one or both spouses can give up the right to claim a share of the other's property at death, perhaps in exchange for an agreed upon amount of assets.

It's important for you to follow through with your estate planning wishes by creating a will or living trust after discussing your plan with an experienced estate planning attorney.

Keep property in the family

If you have separate property that includes an item that you would like to keep in your immediate family, like a family heirloom or inheritance, you and your spouse can agree that it will remain in your family after a divorce. If you expect an inheritance or other property later, you can also include a provision that explicitly addresses future gifts or inheritances. Although this may be unnecessary, depending on the laws of your state and separate property laws, making these wishes explicit and putting them down in writing can be a good idea if you have any concerns about this.

What You Can't Include in a Prenuptial Agreement

Whether or not you create a prenuptial agreement is up to you and your spouse. However, even couples with a prenup will need to go through the formal divorce process and follow state laws. There are several legal issues that the court (or spouses) will need to decide before the judge can terminate your marriage. Although prenuptial agreements may include provisions for property and debt division, spousal support, and even inheritance rights, there are some critical topics that you can't control in a prenup, and you'll need to address during the formal divorce process.

Child custody, parenting time, and child support

Divorcing parents can work together to decide how to handle child custody, parenting time, and child support. However, the court will need to approve your agreement before implementing it, and you can't resolve these issues in advance in a prenuptial agreement.

The court will always have the authority to decide how to allocate child custody and set child support by evaluating what's best for the children at the time the issue arises.

All states have a specific set of factors that courts will consider for custody decisions and to set the amount of child support the noncustodial parent will pay each month. If you're not confident that you will agree with the judge's decision, you may want to consider participating in mediation with your spouse before asking for the court's assistance.

Daily tasks or spousal duties during the marriage

Couples contemplating marriage may want to include provisions in the prenuptial agreement that establish which spouse will take out the trash, clean the house, or address other nonfinancial duties. However, the law prohibits any clause that requires a spouse to complete a task or function in prenuptial agreements, and it may encourage the judge to take your entire agreement less seriously.

If you'd like to establish specific responsibilities for each spouse, you can include your wishes in a separate document. It's important to understand that the court will not enforce this type of arrangement, so if either spouse decides to ignore the provisions the other doesn't have much recourse with the court.

Next Steps

If you're considering a prenup, or are ready to create one, get Prenuptial Agreements: How to Write a Fair & Lasting Contract, by Katherine Stoner, Attorney-Mediator. It provides everything you need, from tips on deciding whether a prenup is right for you to negotiating and drafting the final agreement.

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