Your wedding will be one of the most memorable days of your life. It’s the day you and your fiancé come together to pronounce your love for each other and commit to being faithful. But it’s important to go into marriage with clear expectations. Over 50% of marriages in the US end in divorce, and one way to protect yourself is with a prenuptial agreement.
A prenuptial agreement is a contract that establishes financial and property rights in the event of divorce.
At City Hall Wedding, we often hear the question, “what is a prenuptial agreement all the time?” Keep reading to learn everything you need to know about this legal document and why having one can help your marriage.
The Basics of Prenuptial Agreements
What is a prenuptial agreement?
A prenuptial agreement or prenup is a legal document that outlines the division of assets and responsibilities if you and your partner divorce. The rules for your prenuptial agreement depend on your state, but a typical prenup should be:
- Voluntary and fair
- Documented in writing
- Signed by both parties and the witness
- Specific in disclosure of assets and debts
If your prenup includes an agreement on who will care for your children in the case of divorce, this rule is not binding. You and your spouse can determine the best course of action at the time of the divorce.
It is wise for both you and your fiancé to hire separate attorneys for this agreement unless a conflict waiver is signed.
What should a prenuptial agreement include?
There are several financial and personal topics that both parties should consider before agreeing to sign the prenup:
- Debts: Many couples have debt. Sometimes the majority of that debt comes from one spouse, and the prenup can outline who pays the debt when there is a divorce.
- Children: Many agreements discuss children from previous marriages and children that you and your spouse may have together, including which assets will go to the children.
- Type of property: It is crucial to agree on which assets will remain separate and which will become marital property. With community property established, a couple can begin to discuss how to split it.
- Family property: A good contract will confirm that the family business, heirlooms, and future inheritances will remain with your family.
What happens if I don’t get a Prenuptial Agreement?
Getting a prenuptial agreement can seem cynical. However, the consequences of not getting an agreement can be severe. Your state laws will decide how to distribute your assets in the event of divorce.
Without a prenup, your spouse could have the rights to:
- Equal ownership of your real estate
- Equal ownership of financial assets and marital property
- Split any debts
- Sell or give away their share of the assets
Taking the time to agree on the distribution of assets is a significant investment to protect your assets.
Is there a deadline for a prenuptial agreement?
Not necessarily but getting it out of the way a few months before the wedding is wise. That way, you can spend your time on more fun wedding plans, like researching wedding traditions in America. Most couples sign it after the engagement.
Many couples get married quickly and do not have time to consider a prenuptial agreement. The solution is a postnuptial agreement, which is a similar document that you draft and sign after the wedding.
What if my spouse refuses to sign the prenuptial agreement?
The safest answer is don’t get married. If you and your fiancé cannot agree on the terms of the prenup, your marriage or future divorce could be contentious. Another option is to visit an estate planning attorney to discuss how your state allows you to protect your own assets. For example, if you inherit the family beach house, make sure the name of that asset is yours alone. Placing assets under a joint name can limit your ability to have separate property.
What Could Invalidate the Prenup Agreement?
Not properly executed
When people ask, “what is a prenuptial agreement?” they want to know what could make it invalid.
Both individuals must sign the prenup before the wedding. Otherwise, the agreement is not enforceable. Some states require separate lawyers and an allocated amount of time for review. Some states require this because they want to avoid either spouse feeling pressure to sign the agreement with a wedding around the corner.
Both parties must sign the prenuptial agreements for the right reasons. An example of a clause that could invalidate your prenup would be a stipulation dictating the sexual relationship between you and your spouse. However, more than invalid reasoning is needed to invalidate the whole prenup. Courts often strike specific clauses but validate the rest of the prenup.
False or incomplete information
Although it might seem self-explanatory, prenuptial agreements must be true. The contract can be invalid if you or your spouse do not correctly disclose income, liabilities, debts, or assets. This is another reason that each party should hire separate attorneys. If your partner does not want a prenup, they could hide their true intentions by disclosing false information.
A premarital agreement must be fair. If the courts find it unconscionable, they can move to strike it. For example, if one spouse gets all the assets and the other gets all the debt in the event of a divorce, that would be unconscionable. An agreement like this can indicate that one of the parties was under duress or undue press to sign something they did not agree to.
We understand that prenuptial agreements are the last thing you want to consider during your civil wedding. They may seem boring, tedious, and unromantic, but they’re a symbol of your and your partner’s commitment to each other and ensure a fair and predetermined plan should you need it.
At City Hall Wedding, we can answer all of your marriage questions including, “what is a prenuptial agreement?” With the prenup out of the way, you can focus on the fun parts of planning your wedding. See here to read the benefits of a wedding videographer.