A prenuptial, or prenup as it's commonly called, often seems to have a disheartening connotation -- probably because it seems like it means giving up on a marriage that hasn't even started. However, it's important to be able to think of a prenup objectively so that you can make an informed decision about whether or not you need one. In a nutshell, a prenuptial agreement is a binding legal contract that will generally detail who gets what in the event that the marriage ends. It also often says who gets what if one partner dies, and it can address topics such as debt, too, specifying how debt will be dealt with during the marriage and in the event of a breakup. It can even address topics such as how children will be raised or who will take out the trash.
Reasons to consider a prenup
When you've fallen hard for someone and are excitedly planning a life together, it can seem totally unnecessary to consider a prenup. It can even seem like you're not fully committed to the impending marriage or that you don't have full faith in your partner. Of course, just about every person who has banged their head against a desk in regret over not having signed a prenup also felt that way once. Consider these reasons to sign a prenup:
- The marriage could end. It's sad to think about it, but many marriages ultimately end earlier than either partner expected. Having a prenup means that how the marriage will be undone is laid out ahead of time, to a large degree.
- It can protect one or both parties. If there are a lot of assets involved in the marriage, and especially if one partner entered the union with a lot more than the other, or earned a lot more, a prenup can especially useful.
- It can help both parties avoid nasty legal wrangling, by having a lot of issues settled and agreed upon in advance.
- If one or both parties have children and you want to safeguard their interests, a prenup can come in handy. (Without one, a surviving step-parent might cut the kids out of any inheritance.)
- It can help a couple dispense with some doubt, by forcing them to have certain conversations before marrying. Without doing so, one partner might wonder what would happen should they break up, but might not feel comfortable bringing up the subject.
Why you might not want a prenup
Of course, not everyone needs a prenup. For example, if you're a young couple that hasn't yet accumulated a lot of wealth, and neither of you have hefty incomes or the expectation of any big inheritance, a prenuptial agreement isn't an urgent necessity.
Even for prime prenup candidates, though, there are reasons to think twice. Attorney Laurie Israel has advocated against them with arguments such as:
- Prenups are often unfair to the partner with fewer assets, and that partner is often pressured into agreeing and signing if they want the marriage to happen. Their only card to play is to call off the wedding.
- Many prenups don't address what happens to one partner's ownership of assets should the other partner die while still married. Without a prenup, there are conventional rules and laws that pertain to spouses, with the survivor typically inheriting most assets, unless a will specifies otherwise. But with a prenup, one partner might have waived the right to inherit. This is not a fatal flaw of prenups -- it can be avoided by addressing the issue when drafting the document.
Basically, Israel points out that there are already laws and rules regarding how spouses are to be treated in various situations, and they have been honed over time with the intent of being fair.
Another reason to skip the prenup, some argue, is that it can make both parties work harder to save a struggling marriage -- though sometimes only one partner is willing to do so.
Whether you think you do or don't need a prenup now, your view might change in 10 or 20 years when you're looking at divorce. Situations can change a lot over time. Two people might enter into a union relatively equal in health, wealth, and earning power, but over time, one might end up earning far more, or one might become an invalid. If you waive the right to alimony because you don't expect to need it, you still might end up needing it.
One of the most important things to keep in mind regarding prenuptial agreements is to craft yours with care, if you're going to have one. A sloppy one can ultimately be contested, and one that doesn't thoughtfully address all necessary topics can leave one or both partners unprotected in some aspect(s).
Know, too, that a prenup isn't necessarily the last word. It can be amended via a postnup and it can be cancelled, too, if both parties sign a superseding document voiding it.
It's often a good idea to consult a local lawyer familiar with prenups, as the rules for them vary from state to state.