Common Topics to Cover in a Prenuptial Agreement

A prenuptial agreement (known as a “prenup” in shorthand) is a contract that two people create prior to marriage. In particular, prenups concern the property rights of both spouses before and following a marriage in the case of a divorce.

When you’re considering drafting a prenup, here are the basic issues to be aware of:

The Property Rights for the State in Which You Reside

The rules surrounding property before, during, and after marriage can vary depending on the state. The general distinction is the classification of community property versus separate property states.

Community Property States

Community property is any property that spouses (or a couple in a domestic partnership) own together. In essence, a marriage or registration of a domestic partnership creates the “community” in which all property accrues.

In a community property state, the general rule is that any property acquired during the marriage or partnership is presumed to be “community property.” In the dissolution of a marriage, this property is split between spouses equally.

There are nine community property states in the United States: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.

Separate Property States

In contrast, separate property is any property not owned by the community. Separate property refers to property owned before marriage and is distributed to the separately owning spouse following a marriage.

In a separate property state, the general rule is that property acquired during the marriage is not an asset of the marriage or domestic partnership. Based on the divorce circumstances, a judge will split assets based on “equitable” factors at his or her discretion.

Classifying property as specific separate property in a prenup can guide the courts regarding the distribution of those assets.

Similar Rules Apply to Debt

Like property, similar rules will apply for debt incurred during the marriage. Certain family codes distinguish community debt versus separate debt. Rules about debt can have many technicalities depending on the time of separation, the division of mortgages, and other factors.

To avoid resorting to your state’s default rules, you can call out specific debts in the prenup agreement to guide the court. If you know that your spouse has a major debt liability, it may be in your interest to specifically call it out.

Prenups Can Generally Be Used to Modify Alimony Rights

Alimony is the financial obligation of one spouse to pay the other spouse after a divorce. Alimony is sometimes also known as spousal support or partner support.

Some states allow the spouse’s legal right to alimony to be waived in a prenuptial agreement. However, a judge typically has the right to disregard the waiver if it is considered unfair.

Prenups Only Have Limited Effects on Children’s Rights

A prenuptial agreement can also have some limited effects on children in the marriage. For example, a prenup can make sure that any children from a previous relationship are still entitled to an inheritance.

However, certain provisions are prohibited from a prenup. Any term that seeks to control the amount of child support is invalid because child support is the right of the child, not the parent.

Additionally, child custody cannot be determined in a prenup. A court must determine what parenting arrangement is in the best interest of a child.

Prenup Agreements Can Expire

While prenups are typically a wise agreement to establish before marriage, you may feel a prenup may not be appropriate for a long marriage.

For these scenarios, you might consider a “sunset clause.” This clause will void the agreement if the marriage lasts a certain length of time. Sunset clauses incentivize both partners to work out disagreements rather than seek separation.

Contact a Family Law Attorney Who Works For You

Family law issues can be some of the most complicated and personal issues in the legal system. A well-drafted prenuptial agreement can provide you with security while still feeling like a celebration of a new marriage.

Contact Gucciardo Family Law and we’ll answer any questions you might have about prenuptial agreements or other aspects of family law.