The question about prenups is not if you should get one. It’s would you rather have an agreement that you and your fiancée carefully made together or one that you don’t get a choice in? What happens if you didn’t sign a prenup? Chances are, there’s already an agreement in place — even if you never read the document.
What does it mean if you didn’t sign a prenuptial agreement before getting married and divorce becomes a reality? A family law judge or the laws of your state determines how assets get divided. Unfortunately, there isn’t much you can do about it.
SUBSCRIBE: Get the HerMoney newsletter straight to your inbox every week — for free!
Why Should You Get A Prenup?
The most common reason why folks don’t sign a prenup is that they don’t believe they’ll ever divorce. While divorce rates are declining, 39% of all first marriages end in divorce. That figure is substantially higher for second marriages.
Sometimes folks don’t want to bring up prenuptial agreements because they don’t want to look greedy or like a “gold digger.” In some cases, they don’t want to have a conversation that could turn into an argument. My response is always the same. Consider that a marriage is a contract, not a scene in a romantic comedy. No prudent person would enter into a business partnership without a mutually agreed upon legal contract with future possibilities addressed. Why should the most important partnership in your life – your marriage – be any different?
Prenups Should Be Standard — Not An Exception
Years ago, only celebrities and wealthy people would care about getting a prenuptial agreement. Times have changed and the reasons for needing a prenup have changed with them. Now, I would argue that there are very few couples who should not consider a prenuptial agreement, regardless asset values.
Current marital trends are part of the reason. More people are entering into a first marriage at a later age. This is when they are more likely to have acquired at least some separate assets that would need protection. These are things like 401(k) accounts, stock options, intellectual property, or real estate. Last year, a Harris Poll found that 15% of couples got prenuptial agreements. This is up from 3% in 2010. More than 4 in 10 adults support signing prenups. One-third of unmarried folks say they would sign one in the future.
Some reasons for prenups include:
- Protection of separate property
- Alimony/spousal maintenance
- Division of property A
- Protection of children from a prior relationship
- Business ownership
- Anticipated family inheritances
Having assets to protect is only one reason to have a prenuptial agreement. But you should also have protection from a partner’s debt, too. Say one partner has student loan debt. A prenup can state that all student loan debt — whether the borrowing occurred before or during the marriage — is the sole responsibility of one spouse to repay. Making provisions for handling debts in a prenuptial agreement is especially important if you live in a community property state (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin, optional in Alaska). These are states where any debt incurred by either spouse during the marriage makes both spouses equally liable for repayment of the debt, even if they received no benefit.
LISTEN: Get insight and advice on marriage, relationships, family, careers, and more on the HerMoney podcast. Download and listen wherever you stream your favorite podcasts.
What’s Already In Your Prenup
Money tends to be the biggest reason that couples argue (and possibly divorce). The best time to talk about money and a prenup is when the couple is happy and planning a future together. Having an honest conversation with your intended life partner before marriage ensures that you both are on the same page about finances. It gives you both a good idea of how handling money will go in your marriage.
Ready to take the plunge and have a prenup drawn up? There are a few key things to know about the requirements for a valid prenuptial agreement:
- Both parties must voluntarily enter the agreement, free of coercion and duress.
- Both parties need to write and sign the agreement, usually with witnesses (oral agreements are not valid).
- Both parties should have independent attorneys (some states require it).
- Both parties need to include full disclosure of all assets and liabilities (hiding details can render a prenup invalid).
- In some states, there is a specific time period before the wedding to sign a prenup. A surprise prenup (like the day before the wedding with a threat that the wedding will not go forward if unsigned) might be duress and therefore, not valid
- It’s a balanced agreement (that is, not completely in favor of one party or the other).
A truthful, respectful, and caring prenuptial agreement is a step to making each partner feel secure about the financial future of your family. In many ways, a prenup is like having fire insurance on your home – something that you truly hope you never need but very reassuring that if you do, you will be secure in your understanding about how you will rebuild.
MONEY MAKEOVER: Join Jean’s FinanceFixx — an 8-week program tailored to help you get your money right. You get a coach and fast, sustainable ways to make change in your life. Register now.