What is a prenuptial agreement? You may have heard this referred to as a “prenup.” A prenuptial agreement is a document that is signed and agreed upon by both parties before they marry that concerns the ownership of respective assets should the marriage fail. In other words, a prenuptial agreement is put in pace when one or both people that are getting married have individual pieces of property that they want to protect in the case of a divorce. A prenuptial agreement is considered a non-romantic gesture by many, but it may be necessary. If one person in the marriage is invested in assets that are worth a large sum of money prior to the marriage, they may be inclined to have a prenuptial agreement protecting those assets drafted in an effort to protect what they have collected in the event that the marriage goes sour.
Can I Protect my Inheritance With A Prenuptial Agreement?
You can include a number of things in your prenup agreement including your inheritance. This makes sense since a prenuptial agreement is usually put in place to protect the individual finances of a person who is getting married. You can include any type of financial inheritance in your prenup whether it is a business, property, trust, or so on.
Common Things Included in a Prenuptial Agreement
There are a number of reasons to get a prenuptial agreement. If you are getting married, you should meet with a lawyer and have him/her analyze your situation financially. Some things you might want to detail in your prenuptial agreement are:
- Separate business
- Retirement benefits
- Income, deductions, and claims
- Management of household bills and expenses
- Management of joint bank accounts
- Arrangement regarding investing in certain purchases or projects, like a house or business
- Management of credit card spending and payments
- Saving contributions
- Property distribution to the survivor, including life insurance, in the event of death
- Arranging putting one or the other through school
- Settlement of potential disagreements
Although these are all things that you can detail in your prenuptial agreement, you are not limited to these details. A prenuptial agreement can also include:
Distinguish between separate marital properties – Each state has its own laws on what types of property constitute separate and marital property. In the event of a divorce, the court will separate the property acquired while married evenly. If you have a prenuptial agreement, you can use it to separate your property from your spouse’s before the marriage takes place.
Protect one spouse from the other’s debt – Without a prenup, creditors can go after marital property for one spouse’s debt. You can limit this by adding a clause in your prenup that outlines debt liability.
Provide for children from previous relationship – If you want to ensure that your children inherit what you intend to pass down, you can include this in your prenup. This clause is most commonly used when you are entering a second marriage.
Keep family property in the family – If you have a family inheritance, business, or property that you want to pass on to your children, you should include this in your prenuptial agreement.
Define property distribution – This is a safety plan for a divorce. In this section you will agree on the division of property if you end up getting a divorce.
Things you Can Not Include in a Prenuptial Agreement
Although you can include many things in a prenuptial agreement, there are a number of things that can not be included in a prenup. It is important for your attorney to make sure you only include details that are accepted in court. If your attorney does not, sections of your prenup may not be considered by the judge. The following details should not be included in your prenup:
Provisions detailing anything illegal -You cannot include anything illegal in your prenuptial agreement. If there is something illegal in your agreement the judge might void the agreement.
Decisions regarding child support and child custody – When it comes to child custody and child support, the court has final say. The judge will determine which living situation is “best fit for the child” and how the custody should be planned.
Waive your right to alimony – This is the most commonly struck down provision by courts. Some states allow you to waive your right to alimony, in some states it is frowned upon to include this provision, and in a few it is strictly prohibited to waive your right to alimony in a prenuptial agreement.
Encourage Divorce – You are not allowed to offer an incentive to get divorce. This incentive is usually financial. If this is included in a prenup, the court will rule this section void.
Make rules about personal, rather than financial matters – Prenuptial agreements are designed to address financial matters. Non-financial issues will not be upheld in court. If you want to have personal matters factor into a divorce, you must include it in a separate document.
Going through a divorce is difficult for anyone, even if you have a set terms prior to the marriage. Our divorce attorneys are experienced in writing prenuptial and postnuptial agreements. Contact one of our attorneys for assistance in planning your prenuptial or postnuptial agreement. We will make sure all of your assets are protected in the event of a divorce.