What You Should Know About Creating A Prenup

April 2, 2018  |  
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When you’re happy and in love, you don’t want to even hear mention of the word prenup…That word, in your mind, is reserved for songs about extremely wealthy celebrities moving onto their fourth divorce. It has no place in your blissful love bubble. But there are a lot of things we do when things are good in case things get bad. Getting health insurance—or life insurance—for that matter, is a great example. You don’t want to get sick, but if you do, you don’t also want to deal with devastating financial consequences. So you get the insurance, right? By getting the insurance, you don’t feel like you’re agreeing to get sick or somehow setting yourself up to get sick, do you? Nope. So then why do we feel that way about prenups? As if, by getting one, we’re dooming our marriage to failure? Here are things you should know about creating prenups.

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It’s actually a way of caring for each other

Prenups aren’t all about getting as much as you can, should things go sour. They’re about making arrangements for your assets now, when you and your partner are in a right state of mind. If anything, you’re protecting yourself against the possibility of a future self who would not be in the right state of mind if things went south.

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It’s about more than divorce

Prenups don’t only address who would get what in the event of a divorce. They can also outline financial goals and agreements the couple would like to make throughout their marriage. Remember: it is called a prenup—not a postnup. It’s in place to help your marriage, as well as you as individuals, in the event of a divorce.

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Postnups are a thing, though

Postnuptials do exist. They aren’t actually for after a divorce, but rather, they’re created during a marriage. Couples who fail to get a prenup can get a postnup once married. Many choose to do this if they have children, and want to ensure their inheritance is secure.

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If you don’t have one, the law will step in

If you do not have a prenup, then depending on which state you live in, the state law may determine who gets what after a divorce. Isn’t it better to set those terms yourself?

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Don’t get angry with your partner for wanting one

Do not take it personally. Your partner’s request for a prenup doesn’t mean he doesn’t trust you. In fact, he’s looking out for both of you.

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What if someone screws someone over?

So, maybe all the terms you’re setting out are terms you’d only be comfortable with if this were a civil divorce. What happens if…it isn’t? There’s a clause for that. You can tailor your prenup. You can add a clause, for example, that makes certain terms null and void if one person cheats.

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It can save you money later

Creating a prenup now can save you money later. If you try to divide up assets after a divorce, when you’re both emotional, you may drag things out, and pay much more in legal fees.

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You should have separate lawyers

I know; it feels like you’re going up against your partner in court if you do this. But actually, having separate lawyers is a way you get to keep things as civil as possible between you and your partner. Let your lawyers verbalize the words you don’t want to say with your own mouth. You can consult your lawyer in private, and then she can be the vessel for your message to your partner.

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Let’s look at terms, starting with marital property

There are some terms you’ll find in the agreement, that could be helpful to understand in advance. Your marital property is property that you acquire during your marriage. Should you and your partner buy a house together, while you’re married, that’s marital property.

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Separate property assets and liabilities

These refer to assets each party had, on their own, separately, prior to marriage. Essentially, it’s what they each bring to the table when they get married.

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Termination or operative event

This is the event that would activate the prenup, putting the terms into motion. You and your partner might agree that simply filing for divorce, or having one person move out, would be the operative event.

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Maintenance

You’ve likely heard this term as “spousal support.” If one individual gave up their career in order to enter the marriage, should they get a divorce, maintenance is the financial support their ex will give them after the divorce.

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Sunset clause

It is possible for a prenup to expire, or for certain events to trigger changes in the prenup. Some couples, for example, create a sunset clause stating that the prenup becomes null and void if they’ve been together for X amount of years. Or, it may state that maintenance increases if the couple had children.

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You should get one, even if you aren’t wealthy

If you’re the one with few assets and your partner has many, you may be thinking, “What do I have to protect?” Well, yourself. If you quit school or your job to raise your partner’s children, for example, you should ensure that, should you split up, you won’t be completely destitute.

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You can change it later

You always have the option to revoke your prenup later, and draw up a new one, should circumstances make you want to do so. You just have to both agree to do so.

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