At some point during the 1990s, prenuptial agreements started to get a bad rap. They’re seen as things that set people up to get a divorce one day down the road. In the real legal world, prenups are beneficial agreements couples can use to protect their intended should the worst happen.
Divorce isn’t necessarily something that couples set out for when they get married. There are a lot of couples who will spend a lot of time and money trying to prevent it from happening. So why not go into the marriage with a plan in place should, after all the effort, the marriage really falls apart? Look at it this way; it not so much making an escape plan, but providing your future spouse with a security net.
Divorce isn’t the only thing a prenup can protect a future spouse from either. In a lot of cases, prenups can also address things in the event of an unexpected death as well. Prenuptial agreements can supersede a will and can act as a will should a spouse die intestate, or without a will.
Let’s start with the basics by stating what a prenuptial agreement is—a private agreement signed by a couple before they are married. It outlines the fundamental division of assets in the event of death or divorce.
Keep in mind that a prenup needs to be drafted, agreed upon, and signed before the couple is married. That being said, it isn’t in your best interest to hand your prenup to your intended a week before your nuptials. In some states, prenups can be overturned entirely because it was drafted so hastily. Prenups need to be drafted a few months in advance of the wedding date for a couple of reasons.
First, the agreement has to be fair. While fairness is an objective term attorneys like to live by, but there are a few things that are done to ensure a prenup is fair for both parties involved. For instance, both parties need to be represented by their own attorneys. This isn’t a one attorney job, unfortunately. Although a lot of attorneys, like here at SEB Legal, our attorneys offer special rates to have prenup drafted and reviewed.
For the sake of fairness, both parties have to disclose all their assets. You see, this is because, in most cases, premarital assets are usually off-limits to be divided. This is your first protection should things end up less than ideal a few years down the road. However, assets a crewed during the marriage, well that’s where your prenup can either help or hurt your situation. When you consider celebrity couples like Justin Bieber and Haley Baldwin. When they were married back in 2018, Bieber was work at around $246M, while Baldwin only brought about $2M to the marriage. If they should split in the future, would it be fair for Baldwin only to get her $2M back? We don’t think she would be too happy about that.
In a prenup, it can be specified what the division of assets will be in the event the worst should come of the marriage. It takes into account the unique facts and circumstances surrounding each couple. It also can make stipulations about certain creature comforts that might become apparent during the marriage, to provide each party with what they need to live comfortably.
It also sets the terms for alimony. In most instances, a prenup will do one of two things in terms of alimony—waive it entirely, or not mention it at all. When alimony is waived by a prenup, it means one party cannot seek alimony from the other. Whereas if nothing is stated about it, well then both parties can go after the other. With a prenup, you can outline what will happen without needing to drag things out, fighting over the basic things you need to live. With a comprehensive division of assets in place, there is no need for alimony — most of the time.
What if your spouse does, unfortunately, pass away unexpectedly? Well, like we already stated, a prenup can protect you. Most prenups allow each party to leave their separate property to whomever they want while requiring some provisions to be set aside for their spouse.
There is one thing completely off-limits in a prenup. You cannot provide for or limit child support or rights related to children. Children cannot be used as a bargaining chip in any proceedings. Children’s rights are an entirely different issue, and we’ll cover those in later blog posts.
In terms of prenups, no matter how you look at them, they are put in place to protect you and your future spouse. Draw one up while you are still in the headspace of protecting your spouse from anything. Then, if things don’t end up so great, you can focus on healing rather than revenge. Divorce is emotional no matter what, so do yourself a favor now. Give your intended the peace of mind that should anything happen to them, they’re protected.
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