Marriage is considered a legal contract. Although the specific laws regarding property rights in marriage can vary from state to state (especially between community property states and common law states), marriage generally comes with certain automatic property rights. Here are some examples:
- Separate property (property owned before marriage or received as gifts/inheritance) can sometimes become marital property if it’s mixed with marital assets or used for the benefit of the household.
- Most property acquired during marriage, even if it is the result of only one person’s work, becomes shared property.
- Debts incurred during the marriage have shared responsibility, even if they are only one person’s debt.
Understanding the Purpose of a Prenup
If you would like not to be responsible for the debt your partner brings to the marriage, and if you would prefer to decide on your own how to divide marital property should you divorce, you may want to consider creating a prenup. While writing a prenup is not the most romantic way to start a life together, the resulting document is a very practical road map.
Different states use various names for prenuptial agreements, such as premarital agreements, antenuptial agreements, and prenuptial contracts. When couples create legal property or debt agreements while married, they refer to these documents as postnuptial, postmarital, or marital agreements.
Couples used to commonly establish prenuptial agreements when one partner had significantly more assets or debts before marriage. However, today, couples utilize prenups to clarify various financial and personal situations. For example, a prenup might specify how to do one or more of the following:
What a Prenuptial Agreement Can Cover
- Passing property and assets to children from prior marriages or to your parents
- Protecting possessions or heirlooms that have sentimental or familial value
- Defining financial rights, including to joint bank accounts, credit cards, household bills and savings
- Fulfilling your obligations if you help your spouse through college or a professional degree program
- Protecting your small business if your partner does not also own it
- Assigning custody of pets
- Dividing your property and decide alimony should you divorce
- Protecting each other against debts that you bring to the marriage
Prenuptial agreements may also outline financial penalties for disrespectful or inappropriate behavior — drug use, gambling, physical abuse or infidelity. For example, a prenup may give one spouse a greater share of assets if their partner has an affair. Legal professionals must carefully write and review such clauses to ensure they reliably hold up in court.
What a Prenuptial Agreement Cannot Cover
Some people want to add clauses to a prenuptial agreement stating exactly who’ll do household chores, how you want children to be raised, child custody or child support. Unfortunately, such clauses generally make a prenup unenforceable. Prenuptial agreements should address financial matters only.
Without a prenuptial agreement, your state’s laws will determine who owns what property during your marriage, as well as what happens to separate and marital property in divorce or when one spouse dies.
The legal details of a prenup
Start by having an open, honest conversation about your goals for your prenuptial agreement. Think about property, debt and any possible future inheritances. Negotiate agreements and write them up clearly so that they are easily understood. You can find write-your-own-prenup worksheets online to help you determine what your agreement should cover; these worksheets include sample clauses in simple language. Prenuptial agreements must be in writing, and they must be voluntarily signed by both parties before marriage.
Some states require independent legal review of prenuptial agreements. In that case, you may want to have your own separate lawyer review it. Some states require couples to notarize their prenups.
The requirements and best practices for prenuptial agreements can vary by state, so seek legal advice to ensure the agreement’s validity and enforceability.
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