When planning a wedding, one of the most important things for couples to consider is the inclusion of a prenuptial agreement. Having a prenup in place prior to getting married can help ensure each party’s assets are protected in the event of a divorce, death, or unexpected event that could affect the couple’s finances. In order to ensure the agreement is comprehensive and valid, certain items should be considered within a prenuptial agreement checklist.
What is a Prenuptial Agreement?
A premarital or prenuptial agreement (also known as a “prenup”) is a binding legal agreement signed by both spouses prior to getting married. The agreement protects each party individually in the event of a loss that could alter their financial well-being. This contract dictates the ways the spouses will handle financial aspects of the marriage.
While the practice of prenuptial agreements has existed for thousands of years, it has evolved over time. Since 2017, roughly half of the states in the US (including Texas) have signed the Uniform Premarital Agreement Act. The Act puts forth rules for interpreting prenups within civil proceedings.
What to Include on Your Prenup Checklist
In order for a prenuptial agreement to be valid within the American court system, it must meet certain conditions to ensure it will be recognized. The following checklist outlines some of the most pertinent items to detail within the contract:
Distinctions Between Community Property and Separate Property
While it’s common for spouses to acquire assets during their marriage, individual or separate property includes all the assets a spouse owned prior to the marriage and/or those that have been gifted through inheritance. Since each state has its own laws to distinguish between separate and marital property, if a prenuptial agreement is not in place in the event of a divorce, the court will follow state law when dividing assets. In order to avoid this, a valid prenup should specify what is and isn’t community property in order to protect the personal assets of each individual.
In the event one of the spouses acquired debt prior to marriage, a prenuptial agreement can be used to protect the debt-free spouse from assuming any of the financial liabilities of the other. However, without a valid prenuptial agreement, community property can be subject to creditors even if only one spouse is the debtor.
Waiver of Alimony Rights
In some marriages, the lower-earning spouse is sometimes entitled to alimony payments from the higher-earning spouse prior to or after a divorce. In a valid prenuptial agreement, certain spousal support provisions can be imposed that can potentially waive a spouse’s rights to a prenuptial agreement. However, it’s important to note that no state will enforce an alimony agreement that is deemed punitive or one that leaves a divorced spouse impoverished.
Provisions for Children
In the event there are children on either spouse’s side from a previous marriage, a prenuptial agreement can be used to protect the property rights of those children. This ultimately prevents any confusion or an accidental disinheritance.
Estate Plan Protections
In the event a spouse dies, a valid prenuptial agreement can help to ensure each party’s estate plan will be carried out according to their wishes and is not altered or changed in anyway by the surviving spouse. The prenup, however, does not substitute for a will or a trust as it can only be utilized to enforce those documents.
Financial Responsibilities of Each Spouse
Prenuptial agreements not only outline what happens to each spouse’s assets in the event of a divorce, but it also details each spouse’s financial obligations during the marriage. This includes which party is responsible for paying certain bills, how joint banking accounts are managed, certain contributions of each spouse into savings accounts, and how financial disputes are handled.
What Isn’t Included Prenuptial Agreement
Just as it is important to understand what should be included in a prenuptial agreement checklist, it is equally important to keep in mind the items that cannot be, including:
Child Custody and Child Support
A prenuptial agreement cannot include information pertaining to child custody issues such as visitation, religious upbringing, schooling, child support payments, etc. This is because in the event of a divorce a court will be charged with determining what is in the best interests of the child or children.
Anything Deemed Illegal or Unfair
Any provision in a prenuptial agreement that can be deemed to support or encourage illegal or unfair activities will be struck down. This is especially important as including these items could result in the entire prenuptial agreement being invalidated.
Lifestyle clauses – such as an infidelity clause – are sometimes allowed in prenuptial agreements depending on the state. Such clauses are incredibly difficult to enforce and in most cases judges are hesitant to make a ruling with regard to marital fidelity when reviewing a prenup. Lifestyle clauses are generally considered frivolous and can be viewed unfavorably when contained within a prenuptial agreement.
Brazoria County Family Law Attorneys
When considering drafting a prenuptial agreement, it’s incredibly important to include all necessary items in order for it to be considered valid. While these contracts can be difficult to discuss prior to marriage, an experienced family law attorney can ensure the process goes smoothly. At Terry & Roberts, our attorneys can help to determine if a prenuptial agreement is right for your marriage and can draft and/or review an agreement as well. Contact our office today to discuss your needs with a skilled Brazoria County family law attorney.