Do You Need a Prenuptial Agreement?

When the parties end a marriage, the court looks at two different types of property owned by the couple. The first is marital property, or property that is acquired during the marriage that both parties have ownership rights to. The second is separate property, which is owned by one spouse alone. Separate property can be property that was owned by one spouse prior to the marriage, or it can be property that was specifically given only to one spouse, such as an inheritance from that spouse’s parent. A prenuptial agreement can designate certain property as either separate or marital property.

A prenuptial agreement can also cover how financial issues will be managed during the marriage. Some examples include: 

- whether joint bank accounts will be opened and what they will be used for;
- how household expenses will be paid;
- how tax returns will be filed and how deductions will be taken;
- how debt will be handled;
- whether life insurance will be purchased to benefit the spouse and/or children; and
- whether future disagreements will be handled by a mediator or arbitrator, rather than in court before a judge.

Property rights of children from a spouse’s prior marriage can also be addressed in the prenuptial agreement. For example, if one spouse has been married before, they may want to specify in their prenuptial agreement that children from the previous marriage should inherit specific assets. The prenuptial agreement can also state that a business will not be subject to division or that the non-owner spouse will not get any benefit from the business in the event of a divorce.

Who Needs a Prenuptial Agreement?

Prenuptial agreements are most important for those who:

- Have children from a previous relationship;
- Earn a high income or have significant assets, including real estate;
- Own all or part of a business;
- Have a significant retirement plan or benefits;
- Have significant debt; and/or
- Have agreed that one partner will work to support the other in pursuing additional educational opportunities.

Before seeking help from a lawyer to draft the prenuptial agreement, it is a good idea for the parties to outline what they want the agreement to provide, and come to an agreement on the essential points it should cover. Each party should retain their own lawyer to review the prenuptial agreement before it is signed. 

Courts do not always look favorably on prenuptial agreements that were entered into without independent legal representation for both parties. If only one lawyer was consulted, or if it appears that one party may have had an unfair advantage, the court may invalidate the agreement. Additionally, each party must provide full disclosure of their financial situation to allow for informed decisions to be made. If one party is later found to have hidden assets or debts, for example, the prenuptial agreement may be invalidated.

A lawyer can also ensure that the prenuptial agreement complies with state law and other legal requirements are met. Even though a prenuptial agreement can supersede some state laws regarding the division of property, there may be some laws that take precedence over the agreement. In that regard, a prenuptial agreement that contains provisions against public policy will not be enforced. For example, a prenuptial agreement cannot waive future child support or limit future child custody or visitation rights. 

If you are planning to get married and are considering entering into a prenuptial agreement, use our site to quickly and easily find a qualified attorney to help negotiate, draft, review, and/or finalize your prenuptial agreement.