Prenuptial or prenuptial agreements, often called “prenuptials,” have a reputation for being a tool used by the wealthy to protect their assets. But as marriages have evolved, so have prenuptials—and they may have more uses than you think.
Prenups can give couples an opportunity to communicate about their finances and create a clear framework for the division of property and responsibilities in the event of a separation or divorce, or even the distribution of a partner’s estate.
It is true that it is not very romantic to prepare for the worst while you are in a state of happiness before marriage. However, marriage is one of the most important contracts you can enter into, and legal procedures such as divorce and wills can be so costly and time-consuming that a prenuptial contract may be better to have and not need than to need and not have.
Prenups can ensure that you, your partner, and even your children are in the best possible financial position no matter what happens. Here’s how to tell if you need one, could benefit from it, or might want to consider a different option.
Not all marriages are equal
If you inherit a family business, have children from a previous marriage, or enter into a marriage with significant debt, a prenuptial agreement can give both partners — and their families — peace of mind. These circumstances do not mean that the marriage is likely to end, only that the stakes are higher and more parties may be affected.
Prenups can make a more significant difference in states that have community property laws. For example, in Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin, any assets acquired by either partner during the marriage are divided equally in the event of a divorce, which can cause problems with complex assets such as corporations.
“I think everyone can benefit from a prenuptial agreement; some more than others, depending on assets,” says Nicole Di Giacomo, a managing attorney for her family and marriage law offices in Rockland and Westchester counties in New York. If your assets are complex or highly valuable, it may be worth considering a prenuptial in particular.
Prenuptial is not a death sentence
Some couples may be wary of premarital marriages because it seems like they plan to divorce before the marriage begins. However, protecting yourselves – and each other – in the event of a divorce does not mean you are aiming for it, just as writing a will does not mean you are hoping to end your life.
Prenuptialism, says DiGiacomo, is “essentially a will to marry.” “Most people want to have a will because they want to be able to decide what happens to their assets and not have a court decision.” Prenups allow you to agree to a fair division of property while things are good, so that you can take control of the important things in a worst-case scenario.
“I try to encourage people not to see it as a bad omen or a sign of mistrust,” says DiGiacomo. “It is just a calculation of a future possibility. No one wants to think about when they die, just as no one wants to think about the death of their marriage.”
Prenups can start important conversations
Prenups can give a couple the space to communicate openly about their finances. Craig Harris, estate planning attorney at the law firms of Daniel A. Hunt in Sacramento, California, says a prenuptial agreement can be “a really useful tool at the beginning[of marriage]to get a good understanding of where each party stands.”
According to Harris, a prenuptial program can help some couples align their plans to handle day-to-day marital finances, such as contributing to a joint account or keeping retirement savings separate. “It’s just a good way to come to agreements early on, so it’s not a surprise,” says Harris.
“It never got so ugly,” DiGiacomo notes of her prenuptial procedures. “It’s a very collaborative process.”
Advance preparations are not the only option
Although it can be a useful tool, it is not the only way to come to terms with your future spouse on critical financial decisions. It is equally important to have open communication about your assets and a clear, mutual understanding of “yours, ours, and ours”. In fact, some lawyers believe that the prenuptial period may not be necessary.
“If you’re getting married with money, you don’t need a prenuptial agreement to protect that money, as long as you keep it in your own account, in your name,” says Michael Doman, lead divorce attorney at the law firms of Michael P. Doman, Ltd.
Doman considers himself old-fashioned about marriage and does not personally advocate premarital marriage. “I like to think that if you marry, you will marry forever, and if not, let the leaves fall where possible,” he says. Although he drafts it for clients without judgment, Doman recommends that couples seriously consider their views on money and marriage before entering into a partnership, premarital or not.
Marriage is not just an expression of love; It is also a legal contract. Although it may be beautiful, it can also be financially risky. Whether or not you had a prenuptial agreement, it is essential to acknowledge this risk and accept the potential consequences.