Love and the Law: How Do You Get a Prenup?

By  Tommy Peske
Updated on 05/01/24
Love and the Law: How Do You Get a Prenup?

Love and the Law: How Do You Get a Prenup?

By  Tommy Peske
Updated on 05/01/24
Wedding

Part of the Wedding

Love and the Law: How Do You Get a Prenup?

By  Tommy Peske
Updated on 05/01/24
seperator

No one wants to entertain the thought of splitting from their partner, but the truth is 40–50% of first marriages end in divorce, and up to 67% of second marriages go the same way. (We know — it’s a total buzzkill, especially when wedding planning.)

 

However, if you’re here, you’re likely already thinking about a prenuptial agreement — that oh-so-important document that protects you in the event of a divorce. A prenup secures your and your partner’s financial and property rights should your happy-ever-after end up not-so-happy. As the divorce process is notoriously messy, a prenup can prevent it from also being contentious and expensive.

So, how do you get a prenup, exactly?

Let’s break down the process.

When Should You Get a Prenup?

When Should You Get a Prenup?

How soon you should start arranging your prenuptial agreements largely depends on your state, as state guidelines will differ. However, generally, you should start the process three to six months before the wedding date. This provides time to iron out details and get the prenup officialized.

Wedding planning is stressful enough. The sooner you get the prenup sorted, the less you have to worry about.

The Prenup Process: Step-by-Step

The Prenup Process: Step-by-Step

Before you begin, research prenup laws for your state. 

Familiarize yourself with what’s required, what’s allowed, and what isn’t to avoid mistakes that could lead to a void prenup.

Step 1: Decide if a Prenup is Necessary

First, you must determine if a prenup is necessary. If you have substantial assets or your partner has significant debt, a prenup will protect you. On the other hand, if neither of you has any assets or debt, then a prenup probably isn’t necessary.

The most important thing is to discuss it with your partner and decide on a prenup together. If you surprise your partner with a prenup, you could end up single.

Step 2: Hire Attorneys

The next step is to lawyer up. You and your partner will need separate lawyers. One attorney cannot represent you both, which presents a conflict of interest.

Your lawyers can provide advice throughout the process. Note the longer you spend ironing out details (and getting advice), the higher your lawyer’s bill will be.

Step 3: Discuss Finances With Your Partner

Have a very open and transparent conversation with your future spouse. Each of you should list your property (assets) and decide which shall remain separate property and what will become marital property (also known as “community property”). 

Essentially, separate property is what each of you owns currently that you’ll also own if you divorce. For example, if you owned three houses when you met your partner, you can decide that they will remain your property if you divorce, using a prenup. In contrast, a house you bought together or savings you jointly amass become marital property, and if you were to divorce, you would split these assets. 

List Both Your Assets and Debts

Full disclosure of assets and debts is mandatory. Be completely transparent and list everything, including:

  • Property acquired
  • Financial assets (bank accounts, savings investments, etc.)
  • Retirement funds
  • Business interests
  • Inheritance (received or upcoming) 
  • Other assets (jewelry, art, vehicles, boats, machinery, etc.)
  • All debt (credit card, loans, etc.)

Step 4: Draft the Prenuptial Agreement

When you’ve listed your assets and debts, draft the contract. This can be tricky, especially if there are a lot of separate and marital assets.

When writing the premarital agreement, include answers to the following questions regarding what will happen in the event of a divorce:

  • What happens to the marital home? Will it be sold, and if so, how will you divide the proceeds?
  • Which property remains separate?
  • What happens to shared property? How will it be divided? 
  • How will existing debts be paid? Will existing debt remain in the owner’s name? How will the marital debt be split?
  • How will ongoing finances be handled? How are ongoing bills going to be paid? What will happen to bank accounts, etc.?
  • How will taxes be paid? If someone owes taxes, who pays?
  • Will spousal support be paid? Will one spouse receive financial assistance from the other?

Whatever you decide, the outcome must be fair for both parties. 

Step 5: Agree on a Prenup End Date

You can opt to add a “sunset clause” to your prenup. This defines an end-date upon which the prenup requirements terminate. Otherwise, you can opt for it to continue indefinitely.

Step 6: Officialize Your Prenup

The final step is to make your prenup official. To do this:

  • The prenup must be in writing
  • It must be signed and dated by both parties
  • You may need witnesses to sign it 
  • After separate lawyers’ review, the document must be notarized

After notarization, your prenup is official and legally binding. 

What Can’t You Include in a Prenup?

What Can’t You Include in a Prenup?

You can’t include everything in a prenup, including:

  • Child custody 
  • Child support payments

Matters regarding children are for the courts. The exception is if one party receives child support from a previous marriage or relationship. This can be protected in the prenup.

The prenup also cannot include anything that is in violation of the law, and it cannot be unfair to either party or deliberately compromise one party’s financial future.

Your state laws may also have additional exclusions.

Can You Draft Your Own Prenup?

Can You Draft Your Own Prenup?

Yes, you can draft your own prenuptial agreement. If you create your own agreement, have attorneys review and notarize it. Doing so ensures it is legal, fair, and follows all necessary requirements.

If you create a prenup without a lawyer’s involvement, you risk it becoming null and void during a divorce settlement.

Frequently Asked Questions

How Does Getting a Prenup Work?

A prenup is a legal contract signed by two individuals who intend to wed. It determines each person’s right to property and defines who is entitled to what in the event of a separation. This helps prevent any contention or argument during divorce proceedings.  

Can You Write a Prenup Yourself?

While you can write a prenup yourself, it is not advisable. To ensure the prenup is fair and you are both adequately protected, you should both seek counsel from a lawyer.

How Rich Do You Need to Be for a Prenup?

Getting a prenup is not just for the rich and famous. It’s for anyone who wants to ensure their assets are protected or that they won’t be taking on significant debt from their partner. Additionally, prenups ensure a fair outcome for both parties and can significantly smooth the divorce process.

Who Should Get a Prenup?

Anyone who wants to secure their future via shrewd financial planning should get a prenup. In the event of a separation or divorce, a prenup clearly sets out who is entitled to what. This protects both parties from an unfair outcome or financial hardship.

Is It Good or Bad to Get a Prenup?

Most financial experts consider a prenup wise. Just as you get insurance to protect yourself, a prenup protects you and your future spouse from unfair or unbalanced divorce proceedings. Prenups also help prevent a divorce from becoming messy, contentious, or costly.

Visit The Groom Club for More

Prenups are one of the less pleasant aspects of marriage planning, but they’re crucial to ensuring you and your loved one are protected financially.

At The Groom Club, we’re dedicated to providing the right kind of information so you can make informed decisions on your upcoming engagement or wedding. Whether it’s wedding insurance, ring insurance, or liquor liability, the protection doesn’t stop at prenups!

Of course, we cover all the fun stuff, too, so subscribe to our newsletter and catch all our upcoming articles.

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