Getting ready to say, “I do” with your partner is a commitment of the heart, soul, and — yes — finances, too.
From budgeting for the big day to possibly buying your first home together and beyond, you and your partner will inevitably find yourself dealing with money together.
One money conversation worth having: Do you need a prenuptial agreement? A prenuptial agreement gives you and your partner a chance to plan ahead for the unlikely event of divorce, separation, or dissolution of marriage.
Disclaimer: This article does not constitute legal advice and is not a substitute for obtaining legal advice from a qualified attorney.
What is a Prenup?
A prenuptial agreement is a written legal contract between you and your partner that’s drafted before marriage. It may include details such as:
- Property allocation for anything of value (a business, a home, or investments)
- Terms for spousal support or alimony
- Specific language about who’s responsible for debt that was incurred during the marriage
- A “sunset clause,” which sets an expiration date for the prenup agreement. For example, after 10 years of marriage.
A prenup isn’t valid if either party is coerced into it against their will. Both parties must enter the prenuptial agreement voluntarily, and both parties must fully disclose property and financial obligations.
Why Do People Decide on a Prenup?
“Working in the legal profession, I’ve seen how bad things can go without a prenup,” says Leslie Tayne, debt resolution attorney at Tayne Law Group in New York and author of the money management book “Life & Debt.”
If you plan on helping your spouse pay down their debt during your marriage, for example, a prenup could allow you to get that money back in the event of divorce, says Tayne. Without one in place, you may not be able to recoup the money you put toward your spouse’s debt — funds that you could otherwise use to regain financial independence after a divorce.
Aside from seeing the value of a prenup from a professional perspective, Tayne personally recognized the importance of establishing a prenuptial agreement with her current spouse.
“This was also the best choice for us, because this was both our second marriage and we are established in our careers, plus there are children involved from previous relationships,” says Tayne. “From a personal standpoint, it just made sense. . . . This took the confusion, guessing, and concerns out of the equation.”
Having an agreement in place helped them preserve the best interest for their children from previous relationships and their individual financial successes from their careers.
Lee Huffman, a travel rewards credit card expert at BaldThoughts.com, entered into a prenuptial agreement 10 years ago with his wife, Anna.
“I brought up the subject, but we are both independent people with a keen eye on money issues, so she wasn’t surprised when we started talking about it,” says Huffman. The couple agreed that they both wanted to maintain financial independence in the event it ended in divorce. A prenuptial agreement helped establish this independence early on, particularly since they were in different places financially during their engagement.
“Anna and I came from different backgrounds and financial situations,” says Huffman. “At the time, I made more than she did, but was not going to receive any money from my parents when they passed. Anna had a good job and her parents were good savers. As long as nothing goes bad, she’ll receive some inheritance.”
These considerations aren’t always at the forefront when you’re entering the next phase of your relationship, but establishing these details before your nuptials is a transparent and positive step in your new partnership.
Prenuptial Agreement Pros and Cons
Before pursuing this path, consider the pros and cons of a prenuptial agreement to decide if it might be a good idea for your situation.
Pros of prenuptial agreements
1. Finances are disclosed upfront
The first step when establishing a prenup is both parties need to share all of their financials. Each party’s assets and debt are laid out on the table. It’s an opportunity to discuss the hard numbers which lay the groundwork for deciding how financials are divided up in the event of divorce, separation, or other marital dissolution.
“All financial documents, including bank information, mortgage titles, car loans, etc. need to be provided to the attorney by both parties,” says Tayne.
By openly sharing personal assets like investments, income, anticipated inheritances, and debt, there’s less chance for surprise.
2. Protects property and loved ones
If you’ve grown a business before entering marriage and want to protect that asset in the event of a divorce, a prenuptial agreement can do that.
Huffman had rental properties under his name during his engagement — at the time, his parents resided in one of his properties.
“Making sure that they [parents] were protected in case our marriage didn’t work out was one of my top concerns,” says Huffman.
3. Sets expectations early
Divorce can be a messy and confusing time, emotionally and mentally. With a prenup, there’s no confusion about how assets are divided up. It’s one part of the process that’s already been decided, and that assurance can offer comfort during a stressful time.
“Because we know that we each have great earning potential, we just agreed that ‘what’s yours is yours and what’s mine is mine,’” says Huffman. In the unlikely event of a divorce, their agreement ensures that Huffman and his wife’s individual assets remain intact.
Cons of prenuptial agreements
1. Prenups can feel transactional
Some people are superstitious in that prenups doom your marriage to divorce, or at the very least, that prenuptial agreements kill the romance in a marriage. This is why it’s important to discuss the possibility of a prenup sooner than later (i.e. it might be helpful for you and your partner to have a conversation before getting knee-deep into wedding planning).
“While it’s not the most romantic decision, it allows to protect your own assets, which will be incredibly beneficial to you in the unfortunate event of a divorce,” says Tayne.
2. You’ll pay legal fees
When putting together a prenup agreement, you and your partner will each want to seek legal counsel. Each lawyer will work to provide guidance about the terms of the contract and how it may affect you, your assets, and your family in the event of a divorce.
Legal fees vary, depending on your location and the complexity of your financial situation. In general, fees can range from about $1,500 to $2,000 or more for more complex situations.
3. The terms may favor one spouse
If the prenup was worded poorly or one party’s financial situation has changed dramatically from the time the agreement was first drafted, the outcome of a prenup may be imbalanced.
It may be difficult to anticipate future income or circumstances that may impact the fairness of a prenuptial agreement, which is why seeking independent legal review is important.
The Bottom Line: Should I Get a Prenup?
Moving forward with a prenup is a very personal choice between you and your partner. Some questions to ask yourself to help you decide if getting a prenup is a good idea, include:
- Do you or your partner have a business, investments, or inheritance?
- Do you or your partner have children from a previous marriage or relationship?
- Do you or your partner make significantly more money than the other?
- Do you or your partner have large amounts of debt?
- Do you or your partner plan on pausing or cutting your career entirely to care for family?
If you answered “yes” to any of these questions, you may want to talk to your partner. Looking back, Huffman still feels that a prenup was the right move for their marriage and says that it has kept communication open when it comes to money.
“It made sure that we both knew where the other was with assets, debts, and income,” says Huffman. “And it created opportunities to talk about our money goals, habits, and feelings. As far as we’re both concerned, our prenup is just another piece of paper in the filing cabinet that we’ll never touch again.”
And remember: Having an agreement in place is not a plan to divorce and it does not indicate a lack of trust in your union. It’s simply a way to discuss and agree on finances as a couple, as you’ll do with many other things throughout marriage. Like a living will or an advance directive, it’s preparation for an event you hope will not occur.