Do I Need a Prenuptial Agreement?

A prenuptial agreement, also called a premarital or ante-nuptial agreement, is a contract signed by a couple before they are married that works out financial and other details in case of divorce. You may think such precautions are only taken by wealthy individuals, but a prenuptial agreement can also be helpful to everyday folks who just want to be prepared should the marriage not last.

What is covered in a prenuptial agreement?

Generally a prenuptial agreement covers who gets what in the event of divorce, especially regarding property division. You can also use a prenup to keep assets, finances, and debts separate during a marriage; you can even include a particular family heirloom that you want to make sure stays in your family.

Prenuptial agreements can be especially useful for those who have children from a previous marriage; with a contract before marriage, you can make sure your children still inherit the amount you want them to get in the event of your death.

Other issues potentially covered by a prenuptial agreement include the following:

• Who is responsible for paying bills
• Tax issues such as whether to file joint returns
• Financial issues such as whether to have joint accounts or savings accounts and how they will be managed
• Process for acquiring large purchases such as real estate or vehicles
• Agreements regarding purchases or investments, including for one spouse’s education
• Use of credit
• Method for adjudication of disagreements over the prenuptial agreement

What is not covered in a prenuptial agreement?

Things that should not or cannot be included in a prenuptial agreement include the following:

• Anything illegal or against public policy
• Personal agreements like who will do the dishes, take out the garbage, etc.
• Anything that limits one spouse’s rights to child custody, child support, or visitation

Negating one party’s right to alimony is permissible in some states, but not all.

How are prenuptial agreements treated in a divorce?

So long as the agreement was executed in a manner consistent with state law, it will be enforced in the event of a divorce. Generally the prenuptial agreement must be willingly signed by both parties; a witness or notary may be required, but an attorney often isn’t.

You can write your prenuptial agreement yourselves, but it is probably a good idea to have two different lawyers (one for each side) review it for fairness; if a court finds that a prenup is unfair or otherwise doesn’t comply with state law, especially if no attorneys were involved, it can be thrown out of court.