How and Why Should I Draft a Prenuptial/Premarital Agreement?

Patricia TichenorLegal

couple signing a premarital agreement

Many engaged couples who had planned a 2020 wedding have been forced to postpone their celebration in light of COVID-19. Now, these couples have a lot more time to ponder the legal aspects of marriage rather than just focusing on the big day.

While you and your fiancé are quarantined, take some time to consider creating a prenuptial or premarital agreement to protect the assets you’re each bringing to the marriage. While talking about a prenup can be awkward and uncomfortable, it’s important to approach it calmly and find a solution that works for both of you.

Here’s what you need to know about drafting a premarital agreement with your spouse-to-be.

What is a premarital agreement?

Also known as a “prenup” or prenuptial agreement, a premarital agreement is a legal document that lists out a couple’s assets – property, stocks, inheritance, etc. – before they’re married and determines what would happen to those and any jointly acquired assets should they divorce in the future. It can also address what happens with income and retirement contributions during the marriage should things end in divorce, and under what terms (if ever) either spouse might receive spousal support or alimony from the other. There’s no wrong answer here; it’s up to the couple and what each party is comfortable with.

Why should you have one?

Premarital agreements aren’t just for wealthy couples with numerous valuable assets. Even if you only own a home, a vehicle, and a joint bank account together, there are a few good reasons to consider drafting a prenup:

  • It helps divorce proceedings run smoother if you do split up.
  • Your premarital agreement can help spell out what happens to any future children you may have together, although such provisions will be subject to court-review upon a divorce to ensure that the agreement is in the best-interests of the children.
  • It preserves any special arrangements you and your future spouse decide.
  • It establishes procedures and boundaries for issues that could come up during the marriage.
  • It protects the assets you each brought into the relationship and can prevent each party from being responsible for the other person’s pre-marriage debts.
  • It provides a clear distribution of property or life insurance upon death.
  • It can be amended if life circumstances or assets change.

What to include in a premarital agreement

  • Separation of marital and personal property. A premarital agreement can take the guesswork out of the separation of personal and marital property. It provides clear legal documentation of which assets belong to each party in case there is any question or doubt in the future.
  • Protection of one another’s debts. If one person in the marriage has unresolved debt, creditors may go after marital or shared property without a prenup in place. Drafting your premarital agreement to limit liability upon the other’s debt will keep certain assets out of a debt collector’s reach.
  • Protection for children from other marriages/relationships. If you have children from another relationship and want them to inherit some of your property or assets upon your passing, these preferences can be written in the premarital agreement in relation to your current marriage.
  • Distribution of property and assets in case of divorce. Should you and your spouse file for divorce, a premarital agreement will make those proceedings run smoother and can curtail many back-and-forth arguments or unfavorable court decisions. Keep in mind thata prenup is not anticipating divorce, but making sure both of your preferences are documented just in case your marriage does end.
  • Responsibilities of each spouse. A premarital agreement can help you delegate responsibilities of each spouse, including who holds certain accounts, management of spending and savings accounts, retirement benefits and management of household bills or filing for tax returns.

Thinking of drafting your own prenuptial agreement? My Legal Case Coach can help.

My Legal Case Coach (MLCC) makes it easy to draft your own premarital agreement, using our easy-to-use, templatized DIY case forms packet. With your purchase, you’ll receive one free hour of legal coaching, saving you time and money.  Already married without a prenup?  No problem; MLCC can also help with a post-marital agreement. Schedule a free 15-minute virtual consultation to discuss your situation.