It may be considered the least romantic pre-wedding conversation, but talking about whether or not you and your spouse should sign a prenuptial agreement (also known as a prenup) is a critical step towards a healthy marriage.
You’ll not only have a chance to decide whether this important legal and financial contact is right for you, you’ll also have a prime opportunity to practice communicating openly and honestly about your future, your goals and your finances. We all know that solid communication is key to a successful relationship, so take this opportunity to practice early! Here are some questions to ask yourself and discuss with your beloved before saying “I do.”
What is a prenup?
A prenuptial agreement is a document signed before marriage that outlines how property and financial resources will be split up in the event of a divorce or upon the death of a spouse (though questions related to wealth distribution after death can—and should—also be answered in a will). A prenup can specify things like how much spousal support one partner will receive (though not all judges will honor spousal support agreements if they’re deemed unfair), how assets, debts, retirement benefits and household bills will be divided, how inheritance will be handled should a family member die during your marriage, and how you’ll handle divorce-related disagreements (i.e. through mediation or arbitration).
More often than not, prenups protect the more well-off member of the couple—especially those with family money—but they can also outline support for a party who, for example, will return to school during the marriage and be financially supported by their partner during that period. A prenup will not cover child support or child custody; a court will make those determinations based on the best interests of the child and will most likely throw out any such provisions in a prenuptial agreement.
Who needs one?
If any of the following financial goals or situations apply to you, you may want to sign a prenuptial agreement: you want to keep your finances separate; you want to keep certain assets with your birth family; you don’t want to burden your spouse with your debts; you have children from a previous marriage who need to be protected after your death or divorce; you don’t want to be subject to existing state law; and/or you want to outline financial responsibilities during your marriage, such as who will pay for vacations, who will handle bills, whether or not you’ll keep a joint account and how it will be used, savings goals and how credit cards will or won’t be used.
Why should we sign a prenup?
As much as it hurts to say, the reality is that nearly half of all U.S. marriages end in divorce. So for some couples, it may be worth the effort and discomfort of a prenup conversation to prepare for that possibility. And, if you never need the document, then at the very least you will have had a worthwhile conversation about your finances.
If your marriage does end, your prenup will be there to help prevent a long legal battle (since most financial issues will be covered by your agreement) and it can protect you if your divorce comes unexpectedly (you may feel overwhelmed by the end of your marriage and unable to make cogent decisions, so your prenup can help make them for you).
How do we get one?
Talk to a lawyer! In fact, talk to two lawyers—one for each of you, chosen separately and independently. Do your best to avoid “boiler-plate” prenups, instead opting for an agreement that’s specific to your marriage and appropriate for both parties. Ask your lawyer to factor in things like the gender-wage gap and the “marriage penalty” faced by women (married female workers tend to earn less than single female workers, while married men make more than their single counterparts).
Also, consider the family, property and divorce laws in your state: If all of your concerns are covered (by existing inheritance laws, for example), then you might not need a prenuptial agreement at all.
Could this process be bad for our relationship?
Talking about a prenuptial agreement can be uncomfortable, especially pre-wedding when you’re most in love and excited about the future of your relationship. If both partners have been open about their financial situations since early on in the relationship, the conversation will be more pragmatic and goal-oriented than distressing. If one or both parties have hidden debts or assets, though, things could get ugly. However, it’s better to know everything about your partner’s assets and finances before tying the knot—so this conversation will be doubly important.
Are there any downsides to signing a prenup?
A prenuptial agreement can “override” the community property or equitable distribution laws in your state. That can be good for couples that want to divide their assets in a particular way, but it can also prevent the less-wealthy spouse from obtaining a fair settlement in divorce. For example, in a community property state—such as California—all assets acquired during a marriage (including money and property) are split evenly between both parties in the event of a divorce. That could be good for a spouse who stopped working to raise children and deserves a certain quality of life post-divorce despite not making a direct financial contribution to the marriage. But a prenup that specifies how much spousal support the non-working partner should receive could work out to be less than the 50 percent of income and assets designated by community property laws, meaning the spouse who stopped working could be left in financial disrepair. As in all legal situations, talking to your own lawyer will help you figure out what’s best for you.