If you are about to get married, you may worry about what will happen if things don't go well. You may also worry that your partner interprets your contingency plan as an expression of pessimism or distrust. However, a proper prenuptial agreement will not only save you a messy divorce, as well as give you some valuable insights regarding your partner's financial compatibility. While it is recommended that both of you have a lawyer write (or at least review) the prenup, you could also do it on your own.
Part 1 of 3: Determine if you need a prenuptial agreement
Step 1. Learn about the role of a prenuptial agreement
In simple terms, a prenuptial agreement is a legal contract that describes what each prospective spouse owns before the official marriage, as well as what each would take out of the union if it is dissolved due to death or divorce. These decisions will generally depend on where you live. However, a valid prenuptial agreement places this decision in the hands of both spouses.
Step 2. Consider getting a prenuptial agreement if you and your partner are currently in different financial situations
For example, if you earn considerably more money, own more assets, or have significantly less debt than your partner, it may be in your financial interests to enter into a prenuptial agreement before you are officially married.
- For example, if you are receiving a large inheritance, a prenuptial agreement can help ensure that you keep those assets rather than allowing them to become part of the marital property.
- Also, if your partner has a large debt, a prenuptial agreement can protect you from having to pay it off.
- If you don't currently have any significant financial assets, but are hoping to earn a higher income during your marriage or will earn an academic degree in a highly lucrative profession, you should still consider entering into a prenuptial agreement.
Step 3. Consider entering into a prenuptial agreement if it is not your or your partner's first marriage
Prenuptial agreements can describe who will pay the expenses for children from previous marriages. Therefore, this agreement can help you in this situation to clarify who will be responsible for the children, as well as to describe how assets will be allocated in the event of death or divorce.
Be careful though, as some expenses (eg, paying for college through federal financial aid) still require both parents' involvement, regardless of the existence of a prenuptial agreement
Step 4. Consider entering into a prenuptial agreement if you or your partner have a business
In this situation, a prenuptial agreement can serve two purposes: first, it can protect the assets of the business owner should the marriage end, and second, it can protect the person who does not own the business from incur any liability derived from the operation of said company.
Part 2 of 3: Preparing to Draft the Prenuptial Agreement
Step 1. Hire an attorney
Prenuptial agreements should be professionally drafted to ensure that they do not conflict with state laws. Therefore, it is very important that both you and your spouse hire your own attorneys. If both parties are represented by the same attorney, a conflict of interest will result, which could affect the viability of the agreement.
- Talk to your friends and family so they can recommend a lawyer. If they cannot help you in this case, you should look on a law firm's website, where you will usually find a referral service or a list of qualified attorneys for the task. When looking for an attorney, choose one who specializes in prenuptial agreements and marriages.
- Once you find a few potential candidates, meet with them for an initial consultation. During this process, you should ask them about their background and experience with prenuptial agreements. Make sure you feel comfortable with the professional representing you.
- Once you find the right attorney, hire them and be sure to agree on their fees in writing.
Step 2. Talk to your partner about finances
Prenuptial agreements are generally money-related, so you and your partner will need to talk honestly about your respective finances, as well as what will happen to your money and assets after the marriage. Even if you can't write an actual agreement, airing this information will give you a solid foundation of trust for the future of your marriage.
- Be sure to mention any financial issues that may affect your future marriage, including current assets and debts, credit ratings, shared expenses, possible separate bank accounts, financial goals you both pursue, if any. either of you will stay at home with the children or if you both work, etc.
- Start the conversation with a financial issue that you both share, such as: “I was going through some bills today and realized that I still have a chance to pay off my student loans. How is your case?
Step 3. Get into this conversation as soon as possible
It is best to bring up this topic well before marriage so that both you and your partner have plenty of time to open up and come to an understanding in a calm and logical way. Even if you are not sure you want to make this agreement or are still not clear on the terms, it is important that you tell your partner what you think.
- A good time to bring it up is during your money-related conversation, as mentioned in the previous step.
- You can also start the conversation during a talk about a TV show, movie, the news story, or a divorce situation from someone you know. You can say the following: “What a problem. I think it is best to keep all possessions before marriage. What do you think?".
- If you both attend a religious counseling service before marriage, try to bring up finances and how they will support each other during the marriage as a way to approach the subject of a prenuptial agreement: “My mother left me a considerable inheritance.. I would like to keep it separate from our shared finances so that we can use it in case one of us becomes ill or as a college fund for our future children. That way, we won't have to worry about saving as much of our regular income. What do you think?".
Step 4. Keep the conversation professional
Prenuptial agreements focus around how to handle certain finances, such as each spouse's premarital income, past assets, property acquired during the marriage, retirement plans, and how they will support each other.. Instead of raising the conversation around the imminent possibility of divorce, try to engage with your partner and plan your financial future together, including past, present, and future assets and income.
- In this way, they will be able to touch this topic as something to do for the mutual benefit (and that of the children involved) rather than as a contingency plan in case the marriage fails.
- Focus on reasons other than a possible breakup to establish the prenup. For example, you might say the following: “I have student loans that I will have to pay back for the next ten years. I have some money saved and would like to put it aside from our shared finances in case I ever need emergency funds to pay off regular payments. I also don't want to hold you responsible for my debts. Is my idea good to you? "
- You may also consider using the services of a mediator who specializes in prenuptial agreements. This will provide a controlled and non-judgmental environment in which both of you can organize the details without the formality of having an attorney present.
Step 5. Be honest
It may not be the most romantic conversation you and your partner have, but in a healthy relationship, it is important that you are able to express your fears and concerns.
- If you know your partner will get defensive, emphasize your own vulnerability rather than taking the same stance as well. Chances are, one of you will make more money than the other, but both of you almost certainly work hard.
- You could also explain that you are not questioning the engagement or marriage, but the legal aspects of the "contract" that they figuratively sign at the time of marriage. In other words, you do not agree with the local laws regarding marriage or divorce and want to write your own version in order to make the laws suit your particular needs.
- Encourage your partner to think about their own assets and their future as well.
- Try to keep your conversation light, because after all, you are both in love.
- “I love the fact that we are both well paid in our jobs, which is a huge change from the days of delivering pizzas and living off the government, don't you think? Now that the universe has decided to give me a benefit and I earn a good salary, I think I would like to have a separate account to take care of my parents. Would you agree with that?
Step 6. Convince your partner to agree to a prenuptial agreement
At this point, both of you should be clear about each other's financial situation and, during these conversations, you should also have an idea of your partner's availability to commit to a legal agreement. If your partner is still unsure, try to make her understand that the legal agreement will in no way affect your feelings for her.
- Reiterate that you will also protect your partner by saying something like, “I don't want you to take responsibility for the debts I acquired before I met you. This document will ensure that this is the case. It will also allow you to set aside some money for the vicissitudes that arise in your life”.
- Make your reasons clear: “This is not because I don't trust you. I just want to make sure that our parents, children and future are protected. "
- Lay out the deal as if it will be more of a financial plan than a safety valve. For example, you can say the following: “We are starting this life together and I would like to have a financial plan in place so that we can know exactly where we are now (and where we need to go) and thus achieve our mutual dreams. I was never good at managing my money, but now that we are together I would like to start doing it. "
- If your partner remains reluctant, you will need to weigh the benefits of forcing her to do so against the price of distancing yourself from her or starting the marriage on the wrong foot.
Step 7. Make a list of each of your assets, debts, income, and possible future earnings
Make sure each of you fully and accurately discloses all relevant financial information. Not only is this necessary to establish an honest relationship, but failure to do so could invalidate any financial agreement in the event of a challenge in court. This information will help you write the prenuptial agreement.
If you have any questions, please express them
Part 3 of 3: Drafting the prenuptial agreement
Step 1. Research the laws where you live
Each country has specific laws concerning the granting of prenuptial agreements and, in that case, the kinds of things that cannot be included in them. Generally speaking, these are some of the things that you cannot include in a prenuptial agreement:
- child support, custody or visitation restrictions;
- waiver of alimony rights;
- factors that promote divorce;
- rules about non-financial matters (eg who will do the chores, the decision to have pets, who will bring the children to school).
Step 2. In the prenup, provide a detailed description of each asset you own
This will help to properly identify each asset in the event of a divorce and the prenuptial agreement is reviewed in a court of law.
Include locations and addresses of all your properties; names and numbers of your bank account; the make, model and year of any vehicle you own; and explicit descriptions of any valuables you have, such as diamond cuts on your jewelry or the names of the artists who created the paintings you have
Step 3. List any existing debt you have in the prenup
Because you will need to file a prenuptial agreement, both parties must disclose all of their financial assets and debts in the event that the agreement is challenged in court.
Step 4. Define the property that you will keep separately
Each person includes their property or assets in the marriage. In the prenuptial agreement, you will need to identify the specific property that will remain in the possession of its original owner in the event the marriage is concluded.
- Also consider what will happen if an asset increases in value during the marriage (eg if the value of your collectible car dramatically increases in value over the next ten years).
- Be as specific as possible when referring to each asset. When it comes to the property referred to in a particular clause in the agreement, you should leave nothing to confusion.
- Includes assets or clauses that refer to finances and property, such as businesses, vehicles, homes, valuable jewelry, antiques, property you own, savings accounts, stocks, and inheritances.
- Make sure you keep the individual property in the original owner's name only during the marriage or it could void the prenuptial agreement.
- For example: “The following will constitute the individual property of the parties: the property indicated in Exhibit A as property of [couple 1] and in Exhibit B as property of [couple 2], which are attached in this document and they are part of it”. The "annexes" would be separate and attached documents that detail the specific properties of each person.
Step 5. Define the property that will be shared in the marriage
After determining the properties that will remain separate, you can also identify those that the two of you will share during the marriage. This is known as marital property.
- You should also detail how the assets acquired during the marriage will be divided if it ends.
- For example: “The following will constitute the marital property of the parties: all properties acquired during the marriage until there is a termination (divorce, separation, annulment, etc.) that is not within the individual properties established in section above (detailing the specific properties that will remain separate)”.
Step 6. Define how existing debts will be paid off
It also determines what will happen to all the debts that each spouse brings to the marriage. The agreement can establish that one person is solely responsible for the debts that he has before the marriage or indicate that each of them will be settled with the marital property.
For example: “The obligations (debts) of a party produced before the marriage will remain solely hers. The other party will not be responsible for such obligations, and the responsible party will indemnify it and prevent it from suffering any harm as a result. These existing obligations will be paid with the individual properties of the responsible party”
Step 7. Define any financial support
You can also use a prenuptial agreement to establish how a spouse will maintain financial stability in the event that they stay at home to care for the children. This can also describe any financial support (if any) that one person will pay to the other in the event of a divorce.
- For example: “In the event of a legal separation, divorce or annulment, the parties agree to waive any type of support to which either party may be entitled. The parties agree that they could introduce this clause as a complete defense in response to a claim for alimony”.
- This is also a good time to include clauses related to children of previous marriages in case the situation applies to you. The agreement may detail the type of support that will be provided to any minor child in the event of a divorce.
Step 8. Define what will happen to the marital residence
This is a particularly controversial issue in a divorce case. It will be helpful to decide up front what will happen to the home that you and your partner share in the event of the marriage ending. Determine who will keep it or, if it is sold, how the proceeds from its sale will be divided.
For example: “In the event of a marriage termination: the marital residence will be put up for sale one year after the termination date and the net proceeds obtained will be distributed in accordance with the terms of this agreement. [Couple 1 or 2] has the right to stay in the conjugal residence for up to one (1) year after the termination of the marriage”
Step 9. Define how finances will be managed during the marriage
You can also include clauses related to how large purchases will be made, who will manage the shared finances, who will pay the household bills, and whether they will maintain separate or joint bank accounts.
Step 10. Define how taxes will be administered during the marriage
In the prenuptial agreement, you can describe how you and your partner will pay any taxes you owe. For example, you can decide if they will pay the debts jointly or separately, or what will be done with respect to the pre-existing debts that each person has.
Step 11. Define how the property will be assigned in the event of a divorce
While divorce is by no means an eventuality for you and your partner, one of the main benefits of having a prenup is avoiding arguments in the event of a divorce. In this agreement, you must detail how the property will be divided in the event of a divorce or, otherwise, the laws of your country will take care of it.
- For example: “In the event of a termination of the marriage: each party will retain their separate property and both agree not to claim such property. Unless otherwise stated in this agreement, all marital property must be divided between the parties in accordance with [the law of your country]”.
- Keep in mind that although you can include clauses related to alimony, not all countries accept them.
Step 12. Decide on the duration of the prenuptial agreement
The prenuptial agreement does not have to last forever. You can indicate its duration by means of something known as a "sunset clause" in order to specify a future date when the agreement will lose its validity. You could also describe any conditions related to the party ending the marriage or the reason the marriage ended.
- You can also detail when and how the prenuptial agreement can be renegotiated at a later date.
- For example: “This agreement may not be amended or revoked, except by part of an instrument present in the document that both parties have signed, acknowledged and witnessed with the same formalities as this agreement, where one or all of the present clauses”.
- Keep in mind, however, that the laws probably don't give much weight to the sections of a prenuptial agreement that impose certain consequences on a person based on their level of “fault” (eg, an affair).
Step 13. Make sure the agreement is fair to both parties
While the courts consider the legality of prenuptial agreements, they can be challenged and annulled if they do not adequately protect both parties. After you've written it, be sure to keep the following in mind as you finalize it:
- Make sure each person has disclosed all their assets and debts.
- Make sure that neither party feels pressured to sign the agreement and that both parties have enough time to reflect before signing it.
- Make sure the agreement considers both people. Do not try to take advantage of the other person or leave them with less benefits than they deserve after the end of the marriage.
- Make sure both of you have a chance to have their own attorneys read the agreement before signing it.
Step 14. Make the prenuptial agreement official
Although the requirements vary according to the jurisdiction, a prenuptial agreement is a legal document and, therefore, you must meet some conditions for the document to be legally valid:
- It must be in writing.
- It should include the date and signature of your partner and yours.
- Some jurisdictions require the presence of one or two witnesses at the signing of the document.
- Both you and your partner must go to a notary public in person, testify to the authenticity of the document, and have it officially notarized.
- Make sure you have at least three copies for your records: one for each pate involved and one for a third or to keep in a shared safe place.
- The requirements for a prenuptial agreement vary widely depending on your particular jurisdiction. During this process, it is best to speak with an experienced family law attorney where you live to ensure that the prenuptial agreement is legally valid. The lawyer could also provide ideas about points to include in the agreement that you and your partner may not have considered.
- It is highly recommended that you and your partner have independent legal counsel to, at the very least, review the prenuptial agreement before it is executed. This is a factor that the courts take into account when determining the validity of the agreement.
- For example, in the United States, prenuptial agreements are valid in all 50 states and the District of Columbia.
- A court is much more likely to consider the validity of your prenuptial agreement if, at the very least, you have an attorney review it after you and your partner have drafted it.
- Depending on the circumstances and attitude towards your partner and vice versa, both of you will probably want to establish two sections in the prenuptial agreement: one that goes into effect in the event of the death of one of you and another that does so in the event of a divorce.
- Consider adding a mediation clause to your prenuptial agreement that allows you and your partner to participate in third-party mediation to resolve disputes that may arise during the marriage or divorce rather than immediately involving the courts.
- If you and your partner are relatively young, getting married for the first time, and currently have few assets or debt with little chance of future inheritance, they probably don't need a prenuptial agreement.
- Trying to get a prenup can put a lot of stress and anxiety on your partner, who may feel like you don't trust her enough. Make sure to take their feelings into account during this process.
- In a prenuptial agreement, you cannot include clauses related to child support, or child custody or visitation. In the event of a divorce, a court must resolve these issues based on the facts and circumstances as presented at the time of the divorce.
- Do not include non-financial clauses in the prenuptial agreement. This agreement is not a document where personal matters are discussed, such as who will take care of the chores, how they will raise the children or if they can have a pet. These types of clauses are not applicable and will make the agreement less solid compared to keeping it strictly financial.