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What is a Prenuptial Agreement?

Wondering what a prenuptial agreement is? Read on for all you need to know about what prenups are, how they work, and who should have one.

evident Editorial Team
February 24, 2024
wedding cake on table

Getting married is a huge life event. It is also an official legal act that carries important implications. 

Among those implications are rights and responsibilities relating to property, particularly property that is acquired once married.

One thing that can change at least some of the legal consequences that ordinarily accompany getting married is a prenuptial agreement, or prenup. 

But what is a prenup, and how does a prenup work? Should you get a prenup?

In this article, we’ll answer these questions and more, covering everything you need to know about prenuptial agreements.

Key Takeaways

What is a Prenuptial Agreement?

A prenuptial agreement, commonly referred to as a prenup for short, is a written contract entered into by two individuals before they get married. The purpose of a prenup is to outline each spouse's financial and property rights in the event of a divorce or death.

Depending on where you live, state laws refer to prenuptial agreements by different names, including:

  • Prenuptial contract
  • Premarital agreement
  • Premarital contract
  • Antenuptial agreement

These terms are basically interchangeable, but the clear theme is that they refer to a contract or agreement entered into before marriage. This stands in contrast to a postnuptial agreement, which is a contract or agreement entered into during marriage.

Why do people get prenups?

Many people associate prenups with a wealthy person protecting their assets and financial interests from a potential divorce. But prenups have become increasingly popular, and people enter into premarital agreements for various reasons.

So, if you find yourself asking “should I get a prenup?” here are some reasons you might want to consider a premarital agreement.

If you have children from a previous relationship

If you or your future spouse have children from a prior marriage or previous relationships, you may want to pass separate property--that is, the property you have prior to marrying--to your respective children.

Prevent a contentious divorce process

Everyone hopes for a successful marriage, but the reality is that many marriages end in divorce. The divorce process does not have to get ugly, though, and a prenup can help stave off that scenario if you decide how assets and debts would be allocated in advance.

Clarify financial responsibilities and obligations

Sometimes people may want to simply clarify their respective financial rights and obligations. This might particularly apply if one spouse has debt, given that debts incurred during the marriage may be treated differently under state laws than debts incurred before the marriage.

What should be included in a prenuptial agreement?

While the specific contents of a prenup will vary depending on the couple's particular circumstances, here are some key elements that people often include in premarital agreements.

1. Asset division

One of the primary purposes of a prenup is to establish how assets will be divided in the event of a divorce. This can include both separate property (i.e. assets that each party brings into the marriage), as well as marital property (i.e. any assets acquired during the marriage).

2. Debt allocation

In addition to assets, a premarital agreement should also address how any debts will be allocated in a divorce. Again, this can include both debts that each party brings into the marriage, as well as debts that are incurred during the marriage.

3. Alimony

Another common issue to address is spousal support or alimony. This will establish whether one party will be required to provide financial support if the parties divorce, as well as the amount and duration of any such support payments.

But keep in mind that state laws vary on whether premarital agreements can waive a party's rights to spousal support, and other states will scrutinize such agreements if the party waiving spousal support did not have legal counsel.

Also, note that prenups cannot dictate child custody or child support arrangements, and the court typically decides these matters based on the best interests of the child.

4. Protecting individual assets

In some cases, a prenup may be used to protect the individual assets, or separate property, of one or both parties. For example, one party may have a significant amount of assets, such as a family business or inherited property, that they want to remain separate from the marital assets.

A prenup can provide clear guidelines for handling these and whether they should be treated differently from marital assets.

5. Estate planning

In the event that one spouse dies, a prenup can be used to specify how the deceased party's assets will be distributed.

In some ways, a prenup can be a more powerful estate planning tool than a will in determining what the other spouse might inherit, as state laws often influence what a surviving spouse will receive. But if you and your future spouse have determined in advance what is marital property vs separate property, the prenup would govern.

This can help avoid potential disputes among family members, including the surviving spouse, and ensure that the deceased party's wishes are fulfilled.

6. Modification and termination

A prenup will also often include provisions for how it can be modified or terminated in the future. This can include provisions for regular review and updates, as well as provisions for how the prenup can be terminated.

And remember, a prenup should be carefully drafted and reviewed by a lawyer to ensure that it is fair and enforceable under the applicable contract law.

What happens if I don’t have a prenup?

gavel, judge

If you do not have a prenup and are getting divorced, the process will be governed by state law. Property division will depend on the state law where you live, and whether you are in an equitable distribution state or a community property state.

Equitable distribution states

In most states, the court will use a system of equitable distribution to divide the couple's assets and debts. This means that the court will try to divide the couple's property and financial assets in a fair and equitable manner. 

Note, though, that “fair and equitable” does not necessarily mean “equally.”

Courts will typically take into account factors such as:

  • the length of the marriage
  • each party's income and assets
  • each party's contribution to marital property, as well as non-financial contributions to the marriage (such as caring for children)

Community property states

In community property states, state law dictates that marital property--that is, all property acquired during the marriage--is jointly owned by both parties. 

In these states, the court will generally divide the couple's marital property and assets equally. (Laws in some community property states have relaxed the requirement of a 50/50 split, though, and some states allow judges to divide property more equitably). 

The community property states are: Arizona; California; Idaho; Louisiana; Nevada; New Mexico; Texas; Washington; Wisconsin.

Regardless of what the law is in your state, the key point is that these issues and crucial financial matters can either be decided for you, or they can be addressed in advance through a premarital agreement.

What are the pros and cons of a prenuptial agreement?

Many people wonder what the advantages and disadvantages are of a prenuptial agreement.

On the pro side of the ledger, a premarital agreement can provide financial protection for both parties in the event of a divorce. It can also help to clarify and define each party's assets and liabilities, which can prevent confusion and disputes in the future.

Additionally, a prenup can provide peace of mind and allow both parties to enter the marriage with a clear understanding of their financial situation.

On the con side of the ledger, some might view a future spouse’s desire for a prenup as a lack of confidence in the future of the marriage. This can create tension, especially if the prenup is brought up only a few weeks or days before the wedding date.

Ultimately, whether to enter a premarital agreement is a personal decision and should be made carefully based on a person's particular circumstances.

Do you need a lawyer for a prenup?

lawyer, office

When deciding whether or not to hire a prenuptial agreement lawyer, there are a few factors to consider. Here are some reasons why you might want to hire an attorney to help with your prenup:

  • Complex financial situations: If you or your future spouse have complex financial situations, a prenuptial agreement lawyer can help you navigate these complexities. Factors that add complexity include having multiple sources of income, significant assets or debts, or owning a business. 
  • Previous marriages: If you or your fiance have been married before, a prenuptial agreement lawyer can help you understand how your prior marriage and any related agreements or obligations may affect your prenup.
  • Disagreements: If you and your fiance cannot agree on the terms of your prenup, a prenuptial agreement lawyer can help mediate the situation and reach a mutually acceptable agreement.

Hiring a prenuptial agreement lawyer can also help ensure your prenup is legally enforceable, which may provide peace of mind as you enter your marriage. 

Do we need separate lawyers?

Whether or not to use separate attorneys is a personal decision that depends on your specific situation. However, it often makes sense to use separate lawyers if you are in a position to do so.

Here are two reasons why you might want to hire separate prenuptial agreement lawyers:

  • Avoiding conflicts of interest: If you and your partner use the same lawyer to draft your prenup, there may be a potential conflict of interest. If you each hire your own attorney, this allows your respective attorneys to avoid any conflict as they prioritize your interests. 
  • Fairness and enforceability: Using separate lawyers can help ensure that your prenup is fair and impartial, which increases the likelihood that it will be enforceable. 

How much does a prenup cost?

dollar, money

In general, the cost of a prenup can range from several hundred dollars to several thousand dollars. Some of the factors that affect the cost of getting a prenup in place include:

  • The complexity of your financial situation: Typically, the more complex your or your partner's financial situation is, the more time and effort a lawyer will need to spend to ensure that the prenup is fair and enforceable.
  • The location: Where you live can also impact the cost of a prenup, as attorney fees vary from place to place. 
  • Whether you hire your own lawyers: As discussed, there are good reasons to consider hiring separate attorneys. But if you do, this may also increase the legal fees. 

How much does a prenup lawyer cost?

The cost of a prenuptial agreement lawyer will depend on several factors, most notably including their experience level and location. 

For instance, the prenuptial agreement lawyer cost in NY will be different from Texas given that Family Law lawyers–the more general category that prenup lawyers fall into–charge different rates in those states. 

Plus, rates will vary within a state as prenuptial agreement lawyers charge more in large cities than in less populated areas, generally speaking.

And the other crucial factor affecting prenuptial agreement lawyer cost: how much time they spend working on your prenup, assuming they charge by the hour. 

Can I just use a prenuptial agreement template?

If you are worried about the cost of hiring a prenuptial agreement lawyer, one alternative is using a prenuptial agreement template. There are pros and cons to this approach, however. 

Pros of using a prenuptial agreement template

On the plus side, using a template can be convenient and cost-effective. And if your situation isn't too complex, you might feel comfortable going the do-it-yourself route. 

Cons of using a prenuptial agreement template

But one of the most significant drawbacks of using a free prenuptial agreement template is that it may not be legally enforceable. Prenuptial agreements are legal documents and can address complex issues. If your prenup is not properly drafted or executed, it may not be enforceable down the road.

That is why it often makes sense to have a lawyer review your prenup to ensure it is fair and enforceable, even if you choose to work off a template and draft your own prenuptial agreement to start the process. 

Can you get a prenup after marriage?

Sometimes the wedding day comes at you fast and you never get around to handling the prenup before getting married. Can you get a prenup after the marriage?

Yes, you can get a prenup after marriage, although it won't technically be called a prenup. Instead, it will be called a postnuptial agreement.

Postnuptial agreements are contracts entered into during a marriage, or after (that is, "post") the wedding day.

Postnuptial agreements can cover many of the same topics and issues as a prenup, so what's the difference between a postnuptial agreement and a prenuptial agreement? The key difference is whether the agreement is signed before or after the couple gets married.

Prenuptial agreements are those signed before (or "pre") the marriage. Postnuptial agreements are those signed after (or "post") the couple gets married.

Many of the same considerations apply in terms of balancing the dynamic of your relationship with the potential benefits of documenting clear expectations or rights, and whether to hire one lawyer, separate lawyers, or use an online template.

FAQs About Prenuptial Agreements

How to nullify a prenup

There may be instances where one or both parties want to nullify or cancel a premarital agreement.

If you want to nullify a prenuptial agreement, here are a few factors to look for that can make a prenup unenforceable:

  • If the prenup was signed under duress 
  • If the prenup is unfair
  • If the prenup was not properly executed

A family law attorney might be a vital resource if you plan on contesting a premarital agreement. 

What exactly does a prenup do?

A prenup sets out each spouse’s assets and liabilities entering a marriage and dictates how those assets and liabilities will be treated in the event of a divorce. 

In the absence of a prenuptial agreement, state laws generally dictate who gets what in a divorce. State laws vary, for instance between community property states (like Texas) vs equitable distribution states. But the key point is that the general rule in the relevant state, whatever that rule may be, will dictate how property is divided in the event of a divorce. 

A prenup instead allows spouses to determine for themselves what property should remain separate property and how certain assets or debts should be handled if the couple splits.  

Why would you want a prenup?

There are a variety of possible motivations, but two primary reasons you might want a prenup are to protect yourself in the event of a divorce and to avoid disputes later. 

If you are concerned about what could happen to some of your assets, particularly if they are valuable or if you owned them prior to getting married, a prenup can protect those assets and ensure you retain them even if you divorce. A prenup can also protect you from your spouse’s debts, which can be a source of concern for some. 

Additionally, prenups help avoid disputes later, which could reduce the cost of a divorce and certainly reduce the stress and conflict that often accompany divorces. 

How does a prenup protect you?

A prenup protects you by clarifying each spouse’s rights and obligations relative to their assets and debts entering a marriage. 

In the absence of a prenup, state laws may instead dictate how those assets and liabilities are handled, and there may be disputes over such questions which can add additional stress and expenses to the divorce process.

Is it good or bad to get a prenup?

Whether or not to get a prenup is a personal decision, and thus difficult to characterize as either simply “good” or “bad.” 

Prenups offer financial protection to couples and help avoid disputes down the line should they divorce. And for people with substantial separate property entering a marriage that does go sideways, prenups can be very helpful. 

But every couple’s situation and dynamic is different, and if one spouse wants a prenup while the other does not, this can create tension. 

Ultimately, whether or not a prenup makes sense is a personal decision that depends on a person’s, and their partner’s, specific circumstances.