What to Include in a Prenup to Set Your Marriage Up for Success

Close up of wedding rings sitting on prenuptial agreement - What to include in prenuptial agreement concept

Many people think of prenuptial agreements as planning for divorce. With that mindset, they are understandably reluctant to get one—who wants to admit defeat before a marriage even gets started? It’s true that a prenup is useful in the event of divorce; when you’ve already settled a potential dispute with clear heads, you don’t have to spend time, money, and emotional energy litigating the issue later.

But prenups do much more than make divorces go smoothly; they can help strengthen marriages as well. How can that possibly be? You just need to shift your mindset from thinking of a prenup as a roadmap for divorce. Instead, recognize it as an opportunity to discuss your values and expectations and to get on the same page.

It’s all too easy for couples planning a wedding to say, “we’ll figure it out later” when it comes to financial issues. Unfortunately, those difficult conversations often get put off until there’s a conflict or crisis. Creating a prenup together and knowing what you should include allows you to anticipate and prevent conflict and create a strong foundation for your marriage. One of the most surprising tips for a successful marriage is actually to get a prenup.

The One Thing You Must Do Before You Create a Prenup

If you want to have a valid, meaningful, effective agreement with your future spouse, you must both make a full and honest disclosure of your financial realities. That includes any debt you may have, as well as all of your assets like real estate, business interests, investments, and financial accounts. Put simply, if you don’t know each other’s financial situations, you can’t make an effective agreement.

Even if you don’t expect to need a court to uphold your agreement in a divorce, it’s important to do everything possible to make sure your agreement would be enforceable. In addition to full financial disclosure, that includes not making your agreement too close in time to the wedding (a person who doesn’t want to have to call off an upcoming wedding might feel pressured into signing a prenup). You should both have independent legal advice regarding your prenup to avoid later allegations of unfairness.

What to Include in a Prenup

A prenuptial agreement should be customized to your situation and needs. Some of the issues below may apply to you, and some may not. However, they are common points of dispute that can often be avoided with advance discussion.

Define Non-Marital Property (and Debt)

In general, assets accumulated by either spouse during a marriage are considered “marital property,” with limited exceptions, such as inheritances and gifts from third parties. Property acquired before the marriage is considered non-marital. That’s important because non-marital property is not subject to division in a divorce.

However, the distinction between marital and non-marital property isn’t always clear cut. If a spouse buys a house in their own name just before getting married, for instance, but then pays the mortgage for years with marital funds, the house would be considered at least partly marital property. If one spouse owns an investment property before marriage, but the other spouse fixes it up and increases its value, that increase in value could be considered marital property. There are many ways that separate property can be “commingled” with marital property, creating confusion about whether it is subject to division in divorce.

A prenup is a great way to make sure that both intended spouses understand going into a marriage what property will be “yours, mine, and ours,” both during marriage and in the event of divorce.

Protect Inheritances for Children of Prior Relationships

In some second marriages, when one spouse dies, the surviving spouse may inherit a significant portion of their estate. Then, when the surviving spouse dies, their own children inherit those assets. The unintended consequence is that the children of the first spouse to die may be shortchanged.

Careful estate planning can help to avoid this inequity, but it’s also important to have a provision in a prenuptial agreement addressing inheritance issues. In South Carolina, a surviving spouse has a legal right to elect to take a one-third share of their late spouse’s probate estate rather than accept what they were left in a will. To avoid disruption of your intended bequests to your children, you and your spouse may want to agree in your prenup to waive your right to an elective share.

Decide How Debt Will Be Handled in Marriage

Financial issues are a major source of conflict in marriage. A prenup is a good way to resolve how you will handle debt in your marriage, both debt that one party brought into the marriage and debt that one or both of you accumulate during the marriage. For instance, if one spouse has student loan debt, will both spouses contribute to paying it down? If one spouse wants to take out a loan during the marriage, should it be secured with their non-marital property?

It’s never easy to discuss debt, but it’s much easier when you’re trying to proactively identify solutions rather than react to a pressing problem.

Address Educational and Career Plans

Marriage is a partnership. Sometimes, one partner makes sacrifices for the good of the family. That may mean putting one’s own career or educational goals on hold to care for children and allow the other partner to focus on their own career advancement. A prenuptial agreement can allow you to decide how both spouses’ contributions will be respected in the marriage and, if necessary, compensated in a divorce.

Manage Business Interests

If one partner owns a business or an interest in a business prior to marriage, do they intend for their future spouse to become a part owner of that business after marriage? What if partners plan to start a business together after marriage? Having a prenup can help establish expectations about business management and spouses’ respective roles and rights during marriage. If a divorce should happen, having a prenup in place will clarify what happens to the business. Without a prenup, that can be a complex and costly issue to litigate.

Establish Social Media Guidelines

People have very different approaches to social media. Some like to narrate every detail of their days, with pictures of every meal and gathering. Others like to keep their personal lives more under wraps. Unfortunately, when those two different types of people marry and their lives are intertwined, private folks may feel exposed and expansive ones may feel muzzled. A prenup can help you and your future spouse establish what each of you is comfortable with the other sharing about you online. That can save fights during your marriage, and if you do divorce, can preempt conflict and ugliness in the process.

These are just a few of the many provisions you can choose to include in your prenup. What to add to a prenup is largely up to you (clauses regarding some things, like child custody and child support, are prohibited). If you’re not sure what to ask for in a prenup, a good place to start is consulting with an experienced family law attorney who has both prepared many prenups and helped resolve disputes that could have been avoided with a prenup.

To learn more about what makes a good prenup and what to ask for in a prenup, contact Brinkley Law Firm to schedule a consultation.