10 Points Your Prenup Should Definitely Address
07 Jan 2022 •5 min read
We've discussed why a prenup is a positive thing for any marriage, but what, exactly do you need to include in that legal doc? Well, Loverlies, we asked Kristen Marquis Dennis, Loverly's featured legal expert, to explain. Here are her prenup pointers.
Puppies, diamonds, real estate. While this may seem like a list of my favorite things (just kidding! Well, maybe...), these are also a few of the key items to think about when drafting your prenuptial agreement with your partner. As we previously discussed, a prenup does not have to be a giant red flag that indicates your marriage is heading for failure. In fact, a prenup can act as quite the opposite.
Because a prenup requires a couple to discuss topics and issues that may otherwise be uncomfortable subjects to broach, a prenup can actually strengthen a couple's bond before they head into marriage, letting the individuals get everything out on the table, so to speak. When all the hot topics are squared away before the big day, there is little room left for confusion (and major fights) over money matters. So make sure your legal doc touches on these ten important topics before you sign on the dotted line. Photo by Jessica Janae Photography on Bridal Musings via Loverly.
The ownership of real property (homes and investment properties).
Your house may feel like a home after the big day, but you want to make sure you know where you stand in terms of ownership, responsibility, and the like before you tie the knot. For example, if you are moving into a home (or condo) that your partner owns, will your name be placed on the deed? Or will it remain your partner’s separate property, with the option for you to receive financial compensation for any agreed upon contributions you make to the home?
Whether particular items are considered community property or separate property.
This can include family heirlooms, gifts, inheritances, and other items intended to be kept within your birth family.
Children from another relationship.
If you are bringing children from a previous relationship into the marriage and want to ensure that they inherit your separately owned property, include this information in the prenup. Generally, these assets (your separate property, not your children) would be considered non-marital assets and, thus, your individual property. Legally speaking, income earned from those assets during the marriage will belong to both of you. You can, however, agree in your prenup that the income and the assets will go to you in the event of a divorce.
You and your fiancé may own and run separate businesses before you marry or may start separate businesses after you marry. You can clearly state in your prenup that these businesses and any income earned from the respective business will remain separate property after marriage.
Americans love their furry friends. And with more people than ever bringing dogs and cats (and pigs and hamsters!) into their homes, the issue of pet custody has become a hot one. Unfortunately, pets are not seen as ‘children’ in the eyes of the law. This means that the court can and will treat your pet as property, to be divided between you and your partner no differently than your couch. If the thought of that makes you cringe, talk it out before you tie the knot.
A conversation about money may be an uncomfortable one to have, but with arguments over finances being one of the biggest reasons couples divorce, why not take some time to discuss, and put in writing, how you two will address common financial issues such as filing taxes and setting up bank accounts; i.e. joint or separate?
Paying off debt.
More and more couples are heading into marriage with outstanding debt. Regardless of whether this debt comes from student loans, credit cards or a business deal gone wrong, when a couple marries, without a prenuptial agreement, one person’s debt becomes the other’s. This means that creditors can go after any and all marital property even though only one of you is the debtor. And as we have discussed, sharing isn’t always caring when it comes to debt!
Arrangements for putting each other through college or professional school.
If one of you is financially supporting the other’s dream to continue their education, you might want to be compensated for your contribution in the event the marriage doesn’t last. Put that in the prenup so there’s no confusion over who owes what when tensions are running high.
The state law that will govern your prenup.
This point is particularly applicable in situations where the couple has residences and/or resides in more than one state. Talk about your options and decide which state’s laws seem more palatable to you both.
How disputes about the prenup will be resolved.
Just because you sign a prenup doesn’t mean that you’ll always agree on everything. So what are you going to do when you just can’t reach a happy conclusion? Options include mediation, court, and arbitration. Discuss the right method for both of you with your family lawyer.
Prenup Points To Discuss
Those are the 10 topics you definitely need to address, but there are also a few optional pointers to consider including in your prenup—like a cheating clause. Not every prenuptial agreement needs one, but these types of clauses are becoming increasingly de rigueur, especially among the celebrity crowd.
A cheating clause, also referred to as an infidelity clause, often states that the couples agree that if one person has an extramarital affair, he or she will have to pay the other spouse with some sort of financial award. And while the list of topics a prenup can address is seemingly endless, there are a few topics that are completely off-limits.
– Child support and custody
– Anything illegal
– Anything thought to encourage divorce (a purposely nebulous concept that can vary from state to state)
In essence, any aspect of a prenup thought to be against public policy, or the betterment of the public and the constitution of marriage, are consistently “set aside” by courts. This means that they are not considered to be valid and are therefore not enforced by the prenup. Of course, these lists are not exhaustive and every couple is unique. Discuss your specific needs with a qualified family law attorney.
Kristen Marquis Dennis is an attorney, digital media marketing expert, and newlywed, which is why we chose her to be Loverly’s featured expert on all things legal. The material in this article is provided for informational purposes only and does not constitute legal advice. Talk to a qualified family law attorney to determine what needs to go in your prenuptial agreement.