Prenup: Why Prenup, What It Is, And Do You Need One?

Written by Laura Sands and Fact Checked by The Law Dictionary Staff  

To some, the mere mention of a prenuptial agreement can lead to controversy and turmoil. Understanding what a prenup is, the purposes a good one can serve, and who needs one can take the sting out of some of those conversations, though. Whether you’re planning on getting married soon or are simply curious about how prenuptial agreements work, taking a closer look at what a prenup does and how it may benefit some people can help people better determine whether or not such an agreement is right for you.

Why Do Prenups Exist?

In the United States, anyone can get divorced. In most states, people can get divorced for any reason and, in some, they can get divorced for no reason at all. No one entering a marriage ever dreams of it someday ending. As most divorced people will attest, however, even those who enter matrimony with the most hopeful of intentions often fall short and marriages don’t always last until death do two part.

Prenuptial agreements are usually legally binding instruments intended to ensure fairness in a divorce process. Philosophically, most are agreed to at a time when both parties are in love with one another and have each other’s best interest at heart. As good prenups are created with the help of legal professionals, these agreements also tend to take on a realistic form of protection for each person’s assets if the marriage should eventually fail.

These types of agreements are also intended to make the divorce process less litigious, faster, and, perhaps, even less expensive when all is said and done. This is because a separate accounting of individual assets has already been determined. With each person’s financial value, debt liabilities, and benefits clearly defined going into the marriage, it is far easier for a judge to determine which marital assets are left to be divided – and how – as a marriage is being dissolved. In light of all of this, prenups may also serve to reduce some of the stress associated with a divorce.

Who Needs a Prenup?

It’s a commonly held belief that prenuptial agreements are reserved for the extremely wealthy, but this simply is not true. Average, working-class women and men often have prenuptial agreements in place when entering a new marriage. Essentially, any person who owns a business, real property, or other assets – such as stocks and bonds – may benefit from having such an agreement.

Parents may also want to consider these documents since prenuptial agreements may also help protect a person’s heirs. For example, couples who are soon to marry may have children from previous relationships. A prenup can be used to separate and protect property that a parent intends for a child to inherit. Structured correctly, said property should not be considered as marital property during a divorce. Without a prenup, things like real estate and other investments, or even family heirlooms a parent intended for a child to receive, may be divided among former spouses when a marriage is dissolved.

Some corporations and other entities may even strongly urge investors and shareholders to have prenups before getting married. This is so that, in case of divorce, the person’s stake in the company is not compromised, nor are employees or other aspects of a business threatened. Without a prenup, it is entirely possible for a former spouse to take control of a company, or parts thereof, that were acquired during a divorce settlement. The spouse who was awarded all or part of their exes company shares may not have any experience or interest in the business and may even wish to see it fail altogether. This, of course, can lead to a highly undesirable or even detrimental outcome for employees, investors, and others involved in that business.

Timing is Everything

One often overlooked advantage of a prenuptial agreement is that they force couples who are intending to marry to have a real conversation about finances, liabilities, and expectations before they say “I do.” Even for couples who remain in their marriages forever, transparency about such matters is advantageous to the health of the marriage and the couple’s financial future. Those entertaining a prenuptial agreement are able to discuss earnings, investments, debts, and credit matters before entering a contractual union with a far better sense of clarity than those who refuse to do so. While these conversations can be uncomfortable and intense, they can also serve a very positive purpose in moving forward with a marriage in full knowledge of each spouse’s financial wealth and health.

Prenuptial agreements are also introduced at a time when couples are in love and are more likely to want fairness to prevail. While all prenups are subject to state requirements and can even be set aside if a divorce judge finds one to be unreasonable, things like child custody and visitation matters can even be part of a prenuptial agreement. When this is the case, terms are often more fairly presented at a time when couples share a mutual love and respect than they may be during a divorce when one or both partners are harboring negative feelings towards the other.

Commonly Held Misconceptions About Prenups

1. Prenups Make Divorce Imminent

People who dislike the idea of prenuptial agreements generally feel like they are planning for divorce. They are right about this, of course, but prenups do not actually provoke divorce. While everyone would love for marriages to stand the test of time, realistically, many relationships go south long before. Prenups aren’t the reason marriages fail, but they can help make sense of financial matters when they do.

2. Prenups Kill Romance

Many people think prenups kill romance; however, marriage is largely a contractual agreement, and romance has nothing at all to do with that arrangement. Sure, a person may bring romantic feelings into a marriage, but romance has never been a requirement for matrimony. A marriage is as romantic – or unromantic – as the two people who sign a marriage contract decide it will be. In this way, a prenup is merely another agreement related to an already non-romantic one.

3. A Person Who Asks For a Prenup Lacks Trust

While this may be true, to some degree, there is something to be said for a lack of blind trust. Going into a marriage, no one ever expects that infidelity, abuse, or other differences will ever become irreconcilable. Yet, we all know of marriages that have ended in divorce, anyway. People also owe it to themselves, their heirs, their business partners, and their spouses to be as realistic as possible about life, relationships, and the possibilities of divorce.

4. If Divorce Never Happens, a Prenup is Meaningless. So Why Bother?

In discussions about prenups, people often overlook other areas where they may bring clarity. For example, if one spouse with children from an earlier relationship passes away without a will or trust and the widowed spouse remarries, the children of the deceased spouse may feel it unfair that their step-parent’s new spouse may receive some ownership in property and other assets that the children’s natural parent left behind. A prenup that was agreed upon before the deceased spouse married can help clarify which assets the children have claim to and which they do not.

Do You Need a Prenup?

You may want to consider a prenuptial agreement if you own real property or other investments, have a retirement account, or have children who are not related to your spouse. If you own a business outright or have decision-making power in another business, asking your future spouse to sign a prenuptial agreement may be among the most responsible things you can do to protect that business.

Even if you are part of a small startup that has yet to see any success, a prenup can be of monumental importance since your startup’s value could potentially skyrocket or even be on the hook for substantial debt in the future. In fact, if you are marrying someone invested in a startup, a carefully drafted prenuptial agreement can help you avoid debt liabilities, credit woes, and other pitfalls that sometimes come with the startup territory.

Further Information

For more information on prenuptial agreements and to determine whether or not you need one, contact an experienced attorney specializing in these types of documents. Most experts advise against trying to draft a prenup on your own as each state has separate requirements for prenuptial agreements, and a document that doesn’t adhere to these requirements may not be legally binding in the end. To ensure fairness, it is also advised that each person have their own attorney review a prenup before signing.

Our article archives can also supply you with a wealth of information on marriage, divorce, and prenuptial agreements. With a better understanding of what prenuptial agreements entail, some of the misconceptions people have about them, and how they may protect individuals entering matrimony, it is clear that prenuptial agreements, in theory, do not have to be controversial at all.

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