Do I Need A Prenuptial Agreement?

For some of us, a prenuptial agreement is something we associate with soap operas and reality TV. The stereotype almost always involves a wealthy older spouse engaged to a younger partner, and it’s fodder for plenty of drama. But in the 21st Century, prenuptial agreements cover a much broader range of circumstances. And prenups are not just about divorce. They’re also an essential estate planning tool, especially when a spouse has children from a previous marriage. Prenups can protect inheritance rights and small business holdings for people of all income levels. And while some couples fear a prenup could start the marriage with a negative tone, there’s evidence that ironing out financial and legal issues in advance can make marriages work better.

What Is A Prenup?

A prenuptial agreement (or premarital agreement) is a legal document a couple signs before getting married. It can detail rights and financial obligations during the marriage and sets up provisions for the death of a spouse or divorce. Some of the primary issues covered in prenuptial agreements include:

• Division of property
• Access to alimony in case of divorce
• Retirement
• Division of debt
• Defining the share of an estate that the surviving spouse will get when a partner dies.

Who Needs A Prenup?

Contrary to the stereotypes, prenups aren’t just for the very rich or for marriages where there’s a significant difference in the two partners’ income or wealth. According to the American Association of Matrimonial Lawyers, prenups are rising in popularity. As couples in the millennial generation get married later in life, both spouses enter the marriage with more individual assets to protect. A 2016 survey of AAML members showed an uptick in prenuptial agreements. Attorneys surveyed cited protection of separate property, alimony and spousal support and division of property in the event of a divorce as some of the main concerns among millennial newlyweds. But remember, prenuptial agreements aren’t just about divorce. They’re also an essential estate planning tool, especially when one or both spouses has children from a previous marriage.

When we think of a prenuptial agreement, we often think of a situation where one spouse has a higher income than the other. In this case, a prenup is certainly beneficial–for both spouses. But there are plenty of other circumstances where prenups can be valuable tools. In an excellent 2021 article for Brides magazine, Colleen Sullivan identifies several situations where prenups can be vital:

• If one or both spouses has been married before, they may be wary of entering a second marriage without an agreement.
• If one or both spouses has children from a previous marriage, a prenup can protect inheritance rights if their parent dies, leaving a stepparent as the surviving spouse.
• If one spouse has higher debt levels, a prenup can protect the other partner from assuming that debt in the event of a divorce.
• If one or both spouses own a business, a prenup can insulate the business from devastation in the event of death or divorce.
• If one or both spouses wants to protect a family inheritance, a prenup can keep that family property or wealth separate from other household income.
• If one spouse plans to be a stay-at-home parent and gives up earning an income during the marriage, a prenup can protect their financial future and ensure that they are treated fairly in a divorce.

How Does A Prenup Protect Both Spouses?

While some couples see prenups as a sign of distrust, many experts say they actually protect spouses and families and can be good for marriages. Negotiating a prenup serves as an opportunity for spouses to sit down and talk about finances, property and other practical issues before marriage. When there’s an income or wealth imbalance, a prenup protects the wealthier partner, including inheritance and business interests. However, it also supports the less-wealthy spouse. For example, if a couple agrees that one partner will stay home with children, attorneys can determine potential alimony payments to protect them in case of a divorce.

Forbes personal finance columnist Heather Locus compares a prenup to a homeowner’s insurance policy: we hope we won’t need it, but it’s there if we do. Setting up a prenup can get tough conversations out of the way ahead of time. In many cases, this can strengthen a marriage. And if divorce does happen, a prenup can make the proceedings less bitter and easier on children and families.

What Can Happen If I Don’t Have A Prenup?

• One of the biggest problems family attorneys see is children from a previous marriage losing out on their inheritance when a stepparent is the surviving spouse. A prenup combined with a will can protect those children while still providing for the spouse.
• Death or divorce can cause problems for small businesses and create unintended consequences for business partners outside the marriage. A prenup can keep the business separate from family holdings and protect others involved.
• In many cases, spouses are caught off guard by their partners’ debt levels when couples aren’t completely transparent. Debt can cause financial stress during the marriage and unexpected hardship in the event of a divorce.
• Finally, when a marriage ends without a prenup, it can lead to bitter battles during a divorce. While having a prenup in place doesn’t guarantee a smooth divorce, it often makes the process shorter and less painful.

Choosing An Attorney for a Prenuptial Agreement

While there’s nothing wrong with getting excited about the romantic and emotional side of marriage, it’s a legal contract as well as a reflection of love. It’s vital to be transparent and pragmatic as we go into a legal partnership with another person. A prenup doesn’t mean you love your future spouse any less or that you have doubts about the union. If you go into a prenup with a constructive attitude, it can positively affect your marriage and relationship.

As you create a prenup with your partner, you should have separate attorneys working in your best interest. The Laurel Brigade Law Group has decades of experience in all areas of family law, including divorce and prenuptial agreements. With support from our seasoned team, many future spouses are pleasantly surprised to find that doing the work and discussing challenging topics ahead of time doesn’t create strife. Instead, it can bring clarity, harmony and peace of mind.