Draft a Prenuptial Agreement That Covers Assets, Debts, and Children.

What is a Prenuptial Agreement?

A Prenuptial Agreement is a financial contract between two people before they are married. Often called Prenups, Prenuptial Agreements are two-way contracts intended to protect both spouses’ assets and to outline who carries the burden of specific debts. These documents outline the assets and debts of each person and how these assets and debts should be managed if the relationship dissolves or a spouse dies.

Prenups are not just for the rich and famous, they are suitable for any couple who wants to responsibly manage their finances, whether they are together or separate.

When to use a Prenuptial Agreement:

You want to decide how assets each of you already own will be managed before you marry.

You want to protect you or your children’s expected inheritance.

You plan on taking on debt you don’t want your spouse to be liable for.

You want to protect a personally-owned business or business partners ask you to shield your mutually-owned business.

You do not want your default state laws to control the distribution of property should you divorce.

Who needs a prenup?

If you ask your accountant or lawyer, they’d both likely say everyone. If you ask a family member or friend, you might hear a different answer. If you ask someone who has experienced a difficult divorce, they will likely say everyone, as well. Many people have opinions about prenups but ultimately, it is up to you and your future spouse to decide if your marriage will benefit from having a Prenuptial Agreement.

Nowadays, financially responsible partners consider establishing a Prenuptial Agreement before any marriage. This is especially true of those entering a second or third marriage. A well thought out prenup can protect both spouses and their children.

Here are some common reasons people choose to enter a Prenuptial Agreement:

To protect the inheritance rights of children from a previous marriage.

To protect business interests, especially if you own a company with others.

One partner is choosing to relinquish their career and needs to be protected if the marriage dissolves.

In some states, spousal support amounts can be outlined in the agreement.

To protect pensions or retirements earned before the marriage.

To protect family-owned properties such as an inherited home.

To separate debt obligations acquired after the marriage.

To shelter one person from the debt the other accumulated before marriage.

They want to decide what happens after a divorce rather than being subject to default state divorce laws.

To establish agreements amicably and fairly while relations are supportive and positive.

Net worth or earning potential vary greatly between the spouses and they want to build fair financial protections for both.

There is a large age difference between the partners and the older person’s retirement and long-term healthcare requirements need to be protected.

When should I use a Prenuptial Agreement?

Prenuptial Agreements are two-sided contracts signed before a couple is married. It outlines each spouse’s assets and debts, and expected future assets and debts, and how they will be managed if the partners choose to part ways, voluntarily or by death.

Prenups are most commonly used when:

You are contemplating marriage and wish to explain the rights and obligations of each person regarding property.

You own significant amounts of property.

You have previously been married.

You have children from a prior marriage.

What financial information is included in a prenup?

While some young couples have not yet accumulated a lot of assets and debt, many couples these days do. Statistics are even showing that since millennials are getting married older than previous generations, they have more to bring to the marriage than they would have if they married ten years younger. Some unmarried people have spent a lot of time building their own business, assets and retirement accounts, and some have also amassed a volume of debt such as student loans, credit card debt, mortgages or tax debt. Whether assets or debt, all clean or dirty financial laundry will need to be aired to create a comprehensive Prenuptial Agreement. Even if you have an asset such as a pension that you plan on retaining for yourself, you still need to reveal that it exists. It is also smart to view and share your current credit reports to ensure that you are not missing a debt and can see what each other’s credit worthiness currently is.

What are the requirements for a valid Prenuptial Agreement?

Prenuptial Agreements must be in writing to be legally valid. Additional requirements for valid Prenuptial Agreements include:

Both parties must voluntarily execute the agreement.

Both parties must engage in full disclosure of their respective situations at the time the document is executed.

The agreement cannot be unreasonably unfair to one of the parties.

Both parties must sign the document in the presence of a notary public.

The agreement cannot be unreasonably unfair to one of the parties.

Create and customize your own Rocket Lawyer Prenuptial Agreement online, consult with a Rocket Lawyer network attorney if you have questions about your agreement or need specific legal advice, and securely eSign the document at any time and on any device.

What happens if I don’t sign a prenup?

An unsigned prenup is not legally binding and is not likely to be enforceable, even if there was some verbal agreement to back it up.

If you did not sign a prenup before getting married, you can resume the conversation after marriage using a Postnuptial Agreement instead.

What are the limitations of using Premarital Agreements?

State laws control what is enforceable in a Prenuptial Agreement. If you need to know what restrictions your state may impose, you can ask a lawyer.

Here are some agreements that your state may not support:

Parental rights. Prenuptial Agreements cannot protect or enforce parental rights. If you decide to divorce and have mutual children, you will need to go through mediation and or court to decide custody arrangements.

Maintenance waivers. In some cases, a prenup may not support the waiving of maintenance (alimony and palimony) payments. While that information can be included in the agreement, the court may review the maintenance at the time of divorce and change the amount if they feel the waiver is unfair.

Incentives for divorce. Judges may look for provisions in the agreement that appear to provide monetary incentives for divorce.

Non-financial agreements. Most judges do not want to see personal information such as who you are to spend holidays with in a Prenuptial Agreement. You can make those agreements in a separate document if needed.

Signing under duress.

If the judge deems that either party appeared to sign under pressure, they may choose to not support the agreement and divide assets according to applicable state laws. For this reason, most lawyers suggest that the document is signed well in advance of the wedding.

Does a prenup protect against or prevent having to pay alimony?

A couple may agree to waive spousal support, also known as alimony, in their Prenuptial Agreement in the event of a divorce. Couples may also agree to provide spousal support, including any details, such as a schedule, should the marriage end up in divorce.

Ultimately, if the matter comes before a judge, the judge may not only look at the terms of the Prenuptial Agreement, but may also look at the circumstances of the two parties to the agreement to determine what was agreed to, whether the agreement is valid, and whether or not enforcing it results in an unfair outcome for either of the parties.

State laws may differ on the validity of prenups and the individual circumstances of each couple can impact the terms of the agreement. Making a customized Prenuptial Agreement can save time and money, but if your situation is complex, such as a second marriage, you may want to consider having a Rocket Lawyer network attorney review your prenup at an affordable rate.

Why is it important to discuss financial matters before getting married?

There is a bit of taboo-type thinking surrounding the idea of asking for a Prenuptial Agreement. However, even if you do not compose a formal document, you need to be able to openly talk about finances and not just the fun stuff like the idea of buying a house someday, but also the hard stuff like how much debt you have, your credit rating and financial obligations to others (like child support or elderly care). Many marital disputes arise from money issues. It is beneficial if you and your partner can willingly and rationally discuss finances before problems arise.

Your marriage may be the most important legal partnership you’ll ever enter. Like business partners, you will have responsibilities, contributions, assets and debts, skills and talents, and more you are bringing to the relationship. And together your goal is to stay in business and be solvent. Solvent for both partners, whether together or not. You’ve already established your love and commitment to one another, the next step may be to decide how best to manage your financial future.

Can we sign a prenup after the wedding?

While it is not common, yes, you can sign an agreement after the wedding. These are often called Postnuptial Agreements. In fact, you can make a financial agreement any time during your marriage. Most couples sign their agreement before the wedding since everyone is on good terms and excited about taking the next big step in their life. Even if you have a prenup in place before the wedding, you will need to alter it periodically as your financial situation changes or if you make large purchases.

Do I need a Prenuptial Agreement lawyer?

Whether or not you should hire a Prenuptial Agreement lawyer may depend on the laws of your state (some states may require both parties have a lawyer review their prenup) and your own comfort level with the details of the agreement itself. If your state’s laws for property division after a divorce are in line with what you’d want anyway, then you might decide that a prenup is not necessary.

In some situations, it might be a good idea for each person to have their own lawyer who can review the prenup with an eye towards their own client’s interests, rather than having a seeming conflict of interest because they are representing both clients at the same time. Having a dedicated lawyer for each person makes the agreement stronger since neither party can later claim they lacked independent advice before signing the agreement.

What other legal documents might be helpful?

When you get married, you’ll want to take the time to update your Will, if you have one. You might also consider adding a Living Will or Power of Attorney.

Last Will and Testament. Any time your family or your assets change, you’ll want to update your Last Will and Testament.

Power of Attorney. Using a Power of Attorney document, you can appoint someone to manage your personal and business responsibilities if you are away or incapacitated.

Living Will. A Living Will allows you to appoint someone to carry out your end-of-life wishes.

We also provide documents for your marriage celebration, such as service contracts for caterers, bartenders, musicians, DJs, limousine services and venue rentals.

Important Details

Each party should seek the advice of separate lawyers before signing this Agreement. The Prenup should be reviewed and signed well in advance of the wedding ceremony because the consideration (value) for entering into the agreement is the act of marriage itself.

The exhibit describing the financial position of each person should be signed by the person whose assets are described. The person who receives the exhibit should also sign the exhibit to acknowledge receipt.

If possible, the parties should attach copies of the actual financial information, account statements, deeds, etc. Without full financial disclosure, the agreement can be deemed unenforceable in a divorce proceeding.

Each party should sign the Transmutation Agreement with their name included as Exhibits ‘C’ and ‘D’ of this Agreement. These Exhibits are necessary to properly classify your property and assets the way that you specified in this Agreement.

While updating the prenuptial agreement itself is not likely to occur (because it must happen prior to the marriage), provisions of the prenuptial agreement can be overridden by the terms of a will (or trust) if the overriding terms are more favorable to the person not making the changes.

Each party must have seven days between the time that each party received the agreement and the time that the agreement is signed. This is to allow both parties to thoroughly review the agreement and seek separate and independent legal counsel. This requirement must be signed off by both parties in the agreement.

In order for a Prenuptial Agreement to be enforced in California, the court must be able to find that each party was independently represented by separate attorneys. Each representing attorney may sign the certificate of independent legal review at the end of this agreement.

Some states require a separate written waiver when a spouse relinquishes their right to independent counsel. If one spouse is not represented by an attorney (and has signed a separate written waiver) the court must be able to find that the party (1) was fully informed of the terms of the agreement and the rights and obligations he or she was relinquishing by signing the agreement, and (2) was proficient in the language in which the explanation of his or her rights was conducted and in which the agreement is written.