There may be no topic in family law more divisive than the prenuptial agreement. Some people find the idea of a prenup to be repellent, transactional, and likely to sour marriage. Others would not contemplate getting married without a detailed blueprint for the financial foundation of their marriage.

What gives? The truth is that a prenuptial agreement can be incredibly useful and helpful in providing clear expectations and financial structure in a marriage—provided it is thoughtfully and carefully crafted. There is no one “right” way to do a prenup; each must be designed to meet partners’ inclinations, needs,  and particular situations. A prenup drafted without regard for a fiancé’s feelings, circumstances or financial futurecan be alienating and start marriage off on rocky footing. On the other hand, a prenup drafted after consultation and consensus between the parties and their independent counsel can provide a sense of security and a solid financial framework for marriage. The ideal prenuptial agreement will keep separate crucial interests, while still being generous enough to promote a strong marital bond and financial stability for both parties throughout marriage and after, whether it ends by death or divorce.

Following are some important questions to think about in considering a prenuptial agreement:

1. Why do you need/want a prenuptial agreement? You may need a prenup if you have any of the following situations:

• You are entering a second, third or more marriage.
• You have significant pre-marital assets, debts, business interests, an existing or expected inheritance that you feel is important or you are required to keep separate.
• You have legal or moral obligations to your children or spouse from a prior relationship/marriage requiring you to set aside portions of your assets or income.
• You are entering marriage later in life and need to consider your long-term care or estate plans.
• You have ongoing or chronic health issues
• You anticipate being a stay-at-home or part-time working parent or homemaker
• You and your spouse-to-be have substantially different spending and saving habits 
• You and/or your spouse own or intend to own a business during marriage, either together or separately.

If any of the above examples apply to you, you should seriously consider getting a prenuptial agreement.

2. What is your fiancé’s situation? Do you have similar life and financial situations? Or is there a large existing or anticipated disparity between your respective circumstances with regards to income, assets, expected inheritances, spending and saving habits, debts, age, or health?

3. How does your fiancé feel about entering a prenuptial agreement? Are you both on the same page about getting a prenup? If not, is that an issue you can work through together, find out and address each other’s concerns or is it a potential deal breaker for marriage? 

4. What kinds of terms should your prenuptial agreement include? 

• If you both agree on having a prenup, how extensive or limited it should be? What happens to earnings and assets acquired before and during the marriage?
• Should you differentiate between earnings from pre-marital assets and those acquired from income earned during the marriage?
• What should be considered marital property?
• How should you share financial obligations such as household expenses during the marriage?
• What happens financially if a spouse does not work due to homemaking, child-rearing, education, illness, or disability?
• In the event of divorce, should alimony be waived or preserved? If preserved, under what circumstances? should the marriage be a minimum number of years long for alimony eligibility? how much, and how long should alimony last?
• Should any of the prenup terms expire after a certain number of years?
• Should the prenup terms be different if one of you dies while the marriage is intact? 

Having open discussions about the potential terms in your prenuptial agreement is incredibly important to promote transparency, trust, understanding, and to prevent either one of you from entering marriage with resentment, which can corrode a marriage and lead to divorce. A good prenup should help build — not break a marriage.

Exploring Prenuptial Agreements: The Particulars

When well-conceived, a prenuptial agreement is not a symbol of distrust but an exercise in good planning in anticipation of future circumstances. While a prenup requires a good deal of forethought and potentially uncomfortable conversations, such discussions can lead to greater understanding, alignment, and clarity between you and your partner about financial planning in your marriage. 

Different Types of Terms Prenuptial Agreements Can Cover

A solid prenup isn’t a one-size-fits-all document. Here are the broad areas it can cover:

1. Financial Structure for Both Parties
One primary goal of a prenuptial agreement is to define the handling of assets and debts brought into and accumulated during the marriage. For example, if one spouse is coming into the marriage with an existing or expected inheritance, real estate, significant funds or investments, or owns a business, a prenup can clarify whether such assets/expectancies remain separate or become marital property. Similarly, if one partner is carrying substantial debt such as student loans, a mortgage, or credit debt, a prenup can specify that they retain full responsibility for it rather than sharing liability.

2. Income allocation during the marriage

A prenuptial agreement can structure what happens to income during the marriage. Partners can agree to share all or some part of their income to put towards the marital enterprise such as household expenses, vacations, joint savings, or joint investments. A partner may wish to keep income from separate property separate or may even be required to keep part of their earned income separate to fulfil obligations to children or a spouse from a prior marriage such as child support, alimony, or college costs. A prenup can set forth such terms and can even be flexible to account for modified court orders regarding a prior marriage and children. 

3. Support and Alimony Arrangements
What happens if a marriage ends, and one spouse has been less able to earn income as they stayed home to care for children, to support the household, or they have chronic illness or disability? A prenuptial agreement can outline terms for spousal support/alimony to ensure that any earnings or savings imbalance during the marriage does not leave one partner without sufficient resources after divorce.

4. Division of Property
A prenuptial agreement can also address how marital property will be divided in the event of divorce or death. This can include real estate, savings, investment, retirement accounts, pets, and even intellectual property such as patents or artistic work created during the marriage. You may wish to consider factors like who will retain ownership of sentimental items, family heirlooms, or investments tied to one partner’s family.

5. Estate Planning Considerations
If you or your fiancé has children from a prior marriage or disabled or ill relatives for whom you need to provide support, ensuring that your prenuptial agreement aligns with your estate plan is critical. A well-conceived prenup can set forth how inheritance, trust funds, or special needs funds are managed and ensure appropriate resources for your loved ones—both old and new.

6. Business Interests
Running a business together or separately can get complicated in a marriage. A prenuptial agreement might address ownership stakes, rights, governance, or buyout clauses to protect the integrity and continued viability of the business. In some instances, third party business co-owners may require a business partner planning marriage to enter a prenuptial agreement that ensures that the partner’s ownership in the business cannot be sold or conveyed to their spouse. Your prenuptial agreement must clearly address these contingencies and may need to incorporate by reference a contract with third-party business partners that illustrates your obligations to those partners and the business.

What Prenuptial Agreements Cannot Regulate

While a prenuptial agreement can incorporate structure for a wide variety of financial and property issues, it does have limitations. Here are a few areas that prenuptial agreements are prohibited from addressing:

Children
A significant prohibition for prenups is the incorporation of custodial arrangements or child support obligations for existing or anticipated children. The state has an independent obligation to ensure that the welfare and best interests of children are met. Such obligation cannot be eclipsed or overridden by a prenuptial agreement. Instead, issues concerning children must be determined based on what is in their best interests depending on the relevant circumstances at the time of separation or divorce. Any prenuptial provisions purporting to address child-related issues will be void and unenforceable upon divorce. 

Non-Financial Relationship Rules
Public policy also prohibits prenuptial agreements from enforcing personal expectations for marriage such as requirements for chores, intimacy, number of date nights, what weight must be maintained during marriage, or that a partner may or may not engage in certain hobbies or activities. These are lifestyle considerations, not legal ones.

How to Approach the Prenup Conversation

Discussing the issue of a prenuptial agreement can feel like dropping a wet blanket on your otherwise-romantic engagement. But it need not be that way. Timing, tone, transparency, and communication are everything. Here are some tips for broaching the topic in a way that builds trust:

1. Timing
A prenuptial agreement should be contemplated several months before marriage and signed several weeks before marriage; ideally six weeks or more. From a practical standpoint, a prenuptial agreement entered on the eve of marriage is less likely to be enforced than one entered well in advance of the marriage. This is because the short timing raises the question as to whether the spouse with less resources was coerced into signing under the stress of the immediacy of the impending marriage. In considering whether to enforce a prenup, one of the factors the court will consider is how long before the marriage did the parties sign the prenup to see whether each had enough time to fully consider its implications.

2. Transparency
Be honest in your reasons for needing a prenuptial agreement and about the assets/income/business interests/inheritance that you wish to remain separate. Transparency will help create a partnership built on openness, mutual respect, and shared values.

3. Listening
Your fiancé might feel nervous, defensive, or even hurt by the idea of a prenup. Validate those feelings and take the time to understand their concerns, interests, and goals. Work together to find solutions and options that feel fair to you both. Your attorneys may be instrumental in helping you identify creative options that will meet both of your needs.

4. Generosity

Tailor your prenuptial agreement to keep your important interests separate while being as generous as you can to your partner.  Especially if your fiancé has significantly less resources and income than you do or if you agree that they will stay home to raise children or support the household, a prenuptial agreement that shares little or no income or assets may create resentment and division in your marriage that could lead to divorce. Consider sharing some of your resources, such as income and assets that are generated during marriage. You may also consider having some provisions of your agreement lapse (“sunset”) after a certain period of years.

5. Get Professional Help Early
While discussing the concept of a prenup is a personal matter, the drafting and execution of the agreement require professional legal representation. Both parties must engage independent counsel early in the process to ensure their interests are fully represented and that the agreement is properly drafted. An experienced attorney can help you identify and understand different options for an agreement given all of your and your fiancé’s particular circumstances. As with timing, in assessing its enforceability, a judge will also consider whether both parties were represented by independent counsel in the negotiation and drafting of a prenuptial agreement. Thus, to avoid a successful challenge to your prenuptial agreement on claims of lack of understanding of the agreement, coercion or unfairness, each party must have independent legal counsel.

A Prenuptial Agreement Can Strengthen a Marriage

When both parties approach a prenuptial agreement thoughtfully, the process can deepen your bond rather than strain it. Discussing financial goals, expectations, and values before marriage can create a stronger foundation and reduce the likelihood of future misunderstandings.

In sum, a prenuptial agreement should not be about planning for failure but about fostering clarity, security, and partnership from the beginning of your marriage. Whether or not you and your fiancé choose to have a prenup, making these decisions together with transparency, respect, and experienced representation is the best way to start marriage with a solid foundation.

Contact Nussbaum Family Law LLC for more information and a consultation about your prenuptial agreement.