Here's Why Everyone Should Consider A Prenuptial Agreement Before Getting Married
"Till death do us apart" might be many brides' and grooms' favorite wedding toast, but there are many couples who part ways before the grave. Ideally, nobody steps into a wedding expecting to get a divorce one day, but separation happens. Sorting out a divorce is just as complicated and stressful as preparing for a wedding, not to mention many hours of bickering over who gets what. To minimize the stress of going through a divorce, many couples, before their nuptials, lay out a prenuptial agreement, also known as a premarital contract.
A prenuptial agreement, per California Legislative Information, is a legal contract that defines how a couple deals with the ownership of their properties, debts, and spousal support, should their marriage fail. By no means does agreeing to a prenuptial agreement suggest that your relationship is doomed and a prenup is what seals its fate. There are people who signed a prenup and celebrated their diamond wedding ceremony. There are also others who wed without a prenup and got divorced afterward. Hope springs eternal, but life is unpredictable and a prenup is a shock absorber. The beauty of a prenup is in how it provides a cushion against a possible eventuality so you can enter a civil union well-informed and at peace.
For instance, a prenup lets you know what happens to future assets when you separate and even protects you from your partner's debts, explains family attorney Raymond Herkmat (via Northwestern Mutual). In case a prenuptial agreement is not a topic you're comfortable discussing, here are several facts about it that might make you change your mind.
A prenuptial agreement clarifies each person's financial rights following a divorce
Having a prenup is about clearing up any confusion regarding finances. A prenup is intended to fully and fairly disclose all the assets as well as debts each person owns and articulates what each person's property rights will be after the marriage, Nolo points out. The major points specified in a prenup include what happens to assets acquired before and during marriage, education or retirement funds, spousal financial support post-separation, debt payments, inheritance, and insurance payouts.
No prenups are exactly the same because every couple's financial background is unique. In case you and your spouse have applied for a house mortgage together, you might want to add that in a prenup. Typically, the prenup will specify whose name will be on the mortgage, how the mortgage payments will be split after the divorce, and who will be responsible for decisions regarding tax, homeowners insurance, property maintenance, and sales proceeds, the Law Office of Maria Lowry cautions. Big purchases come with big responsibilities. Without a prenup, you won't know what your financial future holds and will have to discuss the not-so-comfortable money issues from scratch.
It makes sure no party is marrying for money
Since a prenup protects each party's premarital assets and prevents them from becoming community property, it encourages honest lines of communication from the beginning, HelloPrenup points out. In other words, it prevents people from marrying for money. Without a pre-marital agreement, a 50/50 split post-separation might be true, depending on the rules in your state and how you and your spouse may agree on dividing your assets and debts. However, prenups are more than a way to protect the wealthier spouse from getting less wealthy. It can be especially helpful in protecting the benefits of the less wealthy partner, says Hekmat Family Law.
For instance, if you are a stay-at-home mom or dad tasked with raising the children, your prenup can include clauses that require your working spouse to compensate for you through spousal support. Or, you can choose to not include some clauses in the prenup to protect the less wealthy partner. A spousal support waiver is a typical provision in prenups, which means the less wealthy spouse waives their future claim to alimony payments in the event of divorce. If this waiver is not included in the prenup, the less wealthy spouse might receive spousal support after divorce.
Another option is to include an expiration date, also known as a sunset clause, in your prenup. The sunset clause can come with a five-year or 10-year expiration date, depending on your preference. If the marriage ends before the expiration date, the prenup runs its course and your assets remain intact. But if your marriage outlives the listed expiration date and you get a divorce, your assets will be distributed in conformity with the law of the state where your case takes place.
A prenuptial agreement protects your children's rightful inheritance
Although custody and child support are not included in prenups for the soon-to-be marriage, financial considerations for children from your previous marriage should be discussed in a prenup, per The Law Office of Mark R Hinshaw. Yup! Your soon-to-be spouse might have told you that he or she loves your children from the previous relationship as their own and will support them all the way. But you, as the parent, should guarantee protection for your children's rightful inheritance by stating upfront which of your property will go to them in a written agreement. It can be a portion of money you've set aside for your child's college fund or a family heirloom that carries significant monetary and sentimental value. Functioning like a will in this regard, a prenup allows your assets to be distributed to your children in the event of death or divorce, Andersen, Tate & Carr advises.
Here's an example of why a prenup should be considered when remarrying. Some countries have rules that make it illegal to disinherit your living spouse in a will. This means that your new spouse might potentially get all the assets intended for your children from a previous marriage. If both partners have children and the parents haven't specified how their assets should be allocated in the prenup, the assets of the parent that dies first will be awarded to the surviving spouse rather than the children of the first decedent. In this situation, a prenuptial agreement can assist in ensuring that your children will receive a fair share of your assets. Remarrying with children can be highly complex, and a prenuptial agreement is needed to avoid confusion and conflicts moving forward.
A prenuptial agreement protects your income
A prenup protects your interests by keeping your debts separate. Premarital debts are usually settled by the person who incurred them, obviously. However, debts incurred during the marriage may often be allocated equally, which puts the non-borrowing spouse at a disadvantage, says matrimonial attorney Lois Brenner to Brides. Most debts incurred during marriage are joint debts, or community debts, and creditors of one spouse can go after the joint assets of the couple to collect the debts. A prenuptial agreement can prevent this from happening by requiring that the debts and income of each spouse must be treated separately.
This makes a lot of sense. For instance, if you're frugal and your spouse loves to spend, it wouldn't be fair if you have to pay the debts incurred by that person from your pocket following the divorce. Another example is when one spouse borrows money from the bank or loan sharks to go into business. Without a prenup, you'll have creditors knocking on your door if the business goes south. Treating income and debts separately will, in most cases, make creditors collect from only the borrowing person and leave the non-borrowing spouse alone, divorce lawyer Kelly Chang advises.
Money talk is important in any marriage
This isn't something that someone who's about to tie the knot wants to hear, but almost 50% of marriages in the U.S. end in divorce or separation, per Wilkinson & Finkbeiner. What's more, The Jimenez Law Firm discovers that disputes over money are the second most common reason for divorce, behind adultery. A strong marriage requires commitment, as well as the capacity to discuss practical matters like financial obligations openly. If you're not comfortable enough to discuss any savings, debts, or financial goals with each other, you'll be in for some major surprises and even disappointments down the road.
Ask yourself this question: Will you be comfortable if you find out your husband has secretly accrued a significant debt to fund his gambling habit and now loan sharks are coming after you to demand payments from you? When you step into a marriage not knowing fully what you've signed up for, you'll face unmet expectations, which will lead to heated conflicts and divorce. Without a prenup, whether you earn less or more, you'll be affected. Therefore, stop seeing a prenuptial agreement as a sign of lack of commitment but rather as a tool that gives you more confidence in the face of commitment.