Determining what to include in a prenuptial agreement (prenup) isn’t always simple, but it’s a critical thing every couple should figure out. With a prenup, you often have specific protections or guarantees that impact how a potential divorce in the future unfolds should one occur. If you’re wondering, “What should a woman ask for in a prenup?” or trying to answer the question, “What does a man need in a prenup?” here’s what you typically want to cover.
Generally, the first thing a person should cover in their prenup is the treatment of any premarital assets. Typically, this involves ensuring that assets brought into the relationship remain with the party who held them before the marriage. The assets can include nearly anything, including physical property, real estate, heirlooms, financial accounts, and more.
When you ask for the return of premarital assets in a prenup, specificity is essential. Any ambiguity leads to confusion, and that could prevent the situation from working out as you intended. As a result, provide as many details about each asset as possible.
Additionally, it’s critical to understand that your partner will likely have an asset list of their own. Essentially, by asking to protect your premarital assets, they’ll usually want to do the same in return for adding yours to the prenup, so keep that in mind.
Debt is a topic that’s wise to cover in a prenup. Typically, partners should agree that any premarital debts will be the responsibility of the person who originally acquired them should a divorce occur. That prevents the other partner from having to repay a debt they didn’t accrue should the marriage not work out.
Additionally, it’s often wise to discuss the division of any debts acquired during the marriage, particularly those opened by just one partner. Again, it can help prevent one spouse from becoming financially responsible for debts they didn’t accrue during a divorce, providing them with some financial protection.
Inheritances or Family Assets
While many people assume an inheritance is the sole property of the recipient, even if the recipient is married, that isn’t the case. Instead, they may be treated as joint property during a divorce, which can cause them to become divided up. The same can occur with family assets that pass down after a family member’s death.
Adding a clause that specifically addresses what happens to any inheritances or family assets ensures that the property remains with the intended recipient. Generally, these clauses are reciprocal, giving both partners the same protections.
Spousal Support or Alimony
Spousal support or alimony are financial payments that one former spouse receives from the other after a divorce. Typically, this type of financial protection is requested if there’s a significant disparity in how much each partner earns. For example, if one partner essentially functions as the breadwinner while the other is a stay-at-home parent, the stay-at-home parent may request spousal support or alimony to ensure they aren’t left without financial resources or income if there’s a divorce.
Now, this doesn’t mean spousal support or alimony aren’t reasonable to request, even if both partners work. Instead, it’s a potential smart decision if a couple is financially unbalanced – with one spouse earning far more than the other – or one partner needs to make a career sacrifice to support the other’s professional development. That way, the lower-earning spouse can maintain a suitable lifestyle even if there’s a divorce.
Most spouses give each other gifts over the course of the relationship. As a result, there’s often a strong case for adding a clause to a prenup that make sure that any gifts received formally become the property of the recipient. That’s particularly true if high-value gifts are possible, as adding the clause ensures that those assets aren’t part of the equitable distribution calculations.
Similarly, it’s smart to address gifts given to one partner from an outside party, such as a family member or friend. Again, this ensures the items remain with the intended person should a divorce happen.
Generally, any clauses related to gifts are reciprocal. That means both spouses will have a long-term right to what they receive as a gift from another.
In some cases, couples may benefit from prenup clauses that outline how businesses are treated during a divorce, particularly if the operation helps the marriage in some way, typically financially. Essentially, you can outline whether any current or potential future business is treated as separate property. That prevents it from being divided up during a divorce.
Generally, these clauses are worth considering if a business is the sole effort of one partner and not a joint effort between spouses. Joint effort can indicate shared ownership, either formally or informally, so it makes sense that both partners have some long-term rights. As a result, it’s wise to word these clauses carefully, ensuring neither spouse accidentally cuts themselves out if they were meaningfully involved and an active participant in the business.
While it may feel odd, pets are treated the same way as property during a divorce in most cases. As a result, some spouses may want to add clauses to the prenup that outline what happens to pets during a divorce. That’s particularly true if a partner had a pet before the marriage that came with them after they’re wed, ensuring that the pet remains with them after a divorce. However, even couples without pets can add this clause if they’d like, outlining what would happen to future pets.
It’s critical to note that service animals that assist one partner with a medical need are usually treated differently. Generally, any medically-necessary service animal remains with the party with the medical need in a divorce, regardless of whether the other partner also forms an attachment.
However, emotional support animals that aren’t deemed medically necessary don’t necessarily fall into that category automatically. As a result, a partner with an emotional support animal should get documentation from their doctor that essentially prescribes them an emotional support animal, giving them additional protection.
Infidelity clauses aren’t enforceable in every state, but they’re a potentially wise addition in states that will enforce them. They essentially give one partner compensation if the other cheats during the marriage, often in the form of a lump sum payment or rights to a specific high-value asset. Generally, infidelity clauses are reciprocal, leveraging a penalty against either spouse if an affair or cheating occurs.
It’s also important to note that other types of marital misconduct are potentially addressable through clauses in a prenup. What those would entail could vary depending on what each partner considers misconduct and whether such clauses are enforceable in your state. However, they can serve as opportunities to address other concerns, so it’s wise to keep in mind that they’re potentially an option.
Can you think of anything else a person should ask for in a prenup? Do you believe that having a prenup is generally smart, or do you think it’s unnecessary in most cases? Did you ever leverage a prenup during a divorce? Did you skip a prenup only to regret it later? Share your thoughts in the comments below.
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