What is a Prenuptial Agreement?

Written by AskTheLawyers.com™ on behalf of Jimmy Vaught with Vaught Law Firm LLC..

What is a Prenuptial Agreement?
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Prenuptial agreements or “prenups” are legally binding agreements made before marriage regarding how separate and community property will be handled in the event of a divorce. Couples who are concerned about their financial interests and/or those going into high asset marriages tend to be drawn to prenuptial agreements to protect their financial security in the event of marital dissolution.

Other situations in which a couple may consider using a prenup is when one part has significant debt they don’t want to saddle the other spouse with; or if one spouse intends to take a financial risk such as a business venture or investment but does not want the other to be financially liable. The difficulty with prenuptial agreements can be making them enforceable; every state has slightly different laws regarding what a prenuptial can cover and how it can be enforced.

Unfortunately, it is not uncommon for a couple to draw up their own prenuptial agreement only to later find that it is not legally enforceable. This is why it always recommended to hire an experienced family law attorney to help draft and approve your prenuptials.

Prenuptial agreements may address a variety of decisions, including but not limited to:

  • Whether the couple will use joint or separate bank accounts
  • Which property will be considered separate property instead of community property in the event of divorce
  • How property that is likely to be inherited during the marriage should be distributed
  • What percentage of the expenses each person will be responsible for
  • How debt will be allocated in the event of divorce
  • How the couple will spend versus save their money
  • The amount and type of spousal support (i.e. alimony or spousal maintenance) or deciding that there will be no spousal support
  • Custody of pets
  • Whether one spouse will be expected to take time off work to raise children
  • Where children will be schooled or attend church
  • Whether a “signing bonus” will be paid to one spouse by the other upon marriage
  • Whether a “severance bonus” will be paid to one spouse by the other in the event of divorce

While these are some of the most common issues addressed in prenuptial agreements, they can range widely to include many other decisions. For example, some prenuptial agreements may include infidelity clauses, in which one spouse must compensate the other in the event they are unfaithful. It’s also important to note that although prenuptial agreements may include provisions regarding children, if it is established that these provisions are not in the best interest of the child, they may be altered. Additionally, prenuptials typically cannot be used to decide child custody in advance.

Prenups are intended to protect both parties in the event of divorce, financially and otherwise. However, a prenuptial agreement that does not meet state requirements is little better than having no protection at all, so it’s important to consult with a prenuptial lawyer in your state before signing and filing the finished agreement.

To learn more about prenuptial agreements, reach out to a family lawyer in your area.

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