All About Prenups

A prenuptial contract (“prenup”) lists all the property owned by two people who are about to marry, specifying what each person’s property rights will be after marriage. These days, you don’t have to be wealthy or famous to turn to a prenup.

Here are some reasons you may want to consider a prenup:

  • You’re marrying someone with children from a previous marriage, and you want to spell out what will happen to your property when you die. You may want to pass on separate property to your children, though you also want to provide for your new spouse. Without a prenup, a surviving spouse might have the right to claim a large portion of the other spouse’s property, leaving less for the kids.
  • You may want to clarify financial rights and responsibilities during marriage.
  • You may want to avoid potential arguments if you ever divorce. A prenup can specify in advance how your property will be divided and whether either spouse will receive alimony. However, a waiver of alimony will be scrutinized and may not be enforced if the spouse who gives up alimony didn’t have a lawyer.
  • You want to be protected from your spouse’s debts.
  • You want to be clear on what happens to your estate after divorce or death. If you have no prenup, it will be disposed according to state law.
    • State law even may have a say in what happens to some of the property you owned before you were married.
    • In the absence of a prenup stating otherwise, a spouse has the right to:
      • Share ownership of property acquired during marriage.
      • Incur debts that the other spouse may have to pay for.
      • Share in the management and control of any marital or community property, sometimes including the right to sell it or give it away.

A Modern View

The rise of prenups for average folks reflects changes in how society views marriage and property. Americans are getting married later, meaning the average newlywed has accumulated more assets and more debts before marriage. Meanwhile, many millennials are children of divorce, so they’re predisposed to protect their interests. Courts and legislatures are also more willing to uphold premarital agreements than they once were; today, every state permits them.

What can prenups include?

  • If you owned a house before marriage, the prenup could include a provision stating that you’ll be responsible for all costs associated with the maintenance on the house.
  • Your prenup can state that you’d retain the sole right to sell or lease your beach cottage, but your spouse has a right to live in and use the house in summer.
  • It even can decide which jurisdiction’s laws would be used to interpret the agreement and where any legal proceedings would be held.
  • Personal rights and obligations can be included, such as:
    • Where you’ll live.
    • Freedom to pursue career opportunities.
    • How you’ll raise any children.
  • Prenups cannot contain provisions that violate public policy or a criminal laws.
  • Child support cannot be determined in a prenup. The courts follow each state’s guidelines.

Prenups must be in writing and signed by both parties. Each party must have a lawyer when preparing a prenup, to review it and at least briefly advise you about it.

You can count on Ericson, Scalise & Mangan, PC to provide you with sound guidance and experience in these uncertain times. For assistance with your legal needs, please contact us today at (860) 229-0369, or email us at info@esmlaw.com.