All About Prenups: Answers to Common Questions about Prenuptial Agreements

Congratulations, you’re engaged! Amidst the excitement of announcing your news, wedding planning, and let’s be honest: just sitting and staring at your gorgeous engagement ring, you will likely find yourself thinking about what your life is going to look like after the wedding. After all, a wedding is not just a big party, but the beginning of a new chapter for you and your partner, and once the sparklers have gone out, and the rose petals have been swept away, you two are in this together ‘til death do you part (hopefully). 

Enter, prenups. They tend to get a bad rap, but their mediocre PR belies an important truth: a prenuptial agreement is a symbol of deep love and commitment. When you and your future spouse sign a prenup, you are saying, “I love you so much that I want to protect you no matter what happens in the future.” 

Plus, the prenup process can help you think through a lot of the logistical, financial, and emotional decisions you’ll face in the long run, eliminating surprises down the road so you know exactly what you’re getting when you say “I do.”

If you and/or your partner are thinking about a prenup, you’re already on the right track! But what really is a prenup? And what can you include in one? For answers to these and other commonly asked questions, read on!

What is a prenuptial agreement?

A prenuptial agreement, or “prenup,” is a legally binding written agreement between two people who intend to get married. Typically, a prenup outlines the rules and agreements that will “govern” a couple’s marriage, and if something happens, how their individual and shared assets and obligations would be handled in the event of separation/divorce, death, or permanent disability.

Who should get a prenup?

Everyone can benefit from a prenup, but a prenup is especially essential for individuals and couples with significant assets, those who own businesses, or those who have children from previous relationships. 

What can you include in a prenup?

One of the best things about a prenuptial agreement is how flexible they are. For the most part, you can be as creative as you want when it comes to determining what to put in a prenuptial agreement. Some of the things you can address are: 

1. Plans for managing your finances during marriage
2. How any significant assets each of you owns before marriage would be treated in the case of divorce
3. Protections for businesses owned by either party
4. Financial compensation in the case that one partner leaves the workforce to become a stay-at-home parent
5. Protections for children from prior relationships
6. Plans for pets
7. Mediation requirements

These are just a few examples of the kinds of things you can include in a prenup. The main thing to keep in mind is that a prenup should protect and benefit both people in a marriage, not just one of them.

Note, also, that while you can get creative, there are certain things you cannot include, such as future waivers of child support, pre-planned custody arrangements (e.g., one parent will get custody of the child(ren)), or anything that would violate the law. 

How much does it cost and how long does it take to get a prenup?

The cost and timeline for drafting a prenuptial agreement can vary significantly, depending on several factors, including:

1. Your local market rates for family law attorneys
2. The billing structure and fees of the attorney/law firm you and your partner each choose (e.g., flat rate vs hourly billing)
3. How complex the terms of your prenuptial agreement will be (more complex prenuptials require more time to draft and negotiate, and therefore, more billable hours)
4. How much you and your partner agree or disagree on, and how much time you spend in negotiation on the terms of your prenup

In general, you should start the prenup process well in advance of your wedding, at least six months or so, if possible, to eliminate any financial or time pressure that could sway you or your partner into agreeing to something you otherwise would not.

Can my partner and I use the same attorney for our prenup?

In the state of Maryland and the District of Columbia, one attorney cannot represent both parties to a prenuptial agreement, so you will each need your own attorney from different law firms. The reasoning behind this is simple: your lawyer’s job is to zealously advocate for your best interests, and they can’t represent both your best interests and your future spouse’s at the same time. 

Why should we get a prenup?

When you’re basking in the glow of your engagement, the last thing you want to think about is the possibility of divorce. However, when you’re saying “I do,” you’re not just saying “...until death do us part.” Whether you like it or not, you are also saying “I do” to different legal and financial obligations, and if you don’t have a prenup, the default laws of your state when it comes to the division of assets, child custody, and a whole host of other things. A prenup gives you control over what exactly you are saying yes to when you tie the knot.  

No one can predict the future, and while you are madly in love now, statistics show that not every marriage is meant to last forever. Think of a prenup like insurance for your marriage - you hope to never use it, but if you need to, you’ll be glad you have it. 

Are prenups just about divorce?

Although prenups are most commonly used to determine what would happen if a couple were to separate or divorce, that’s not the only thing they can cover. Prenups can also address certain financial and estate planning questions, such as what your retirement goals are, or what you would want to happen in the event one of you were to become permanently disabled or incapacitated, or pass away before the other.

What are some of the benefits of getting a prenup?

Whether you draft your own prenuptial or not, you effectively already have one. If you and your spouse were to get divorced, in the absence of a prenuptial agreement, you would be subject to the default laws of the state. So, the main benefit of having a prenuptial agreement is that it gives you and your partner control over the rules and terms by which you want your life together to be governed. 

Aside from empowering and protecting you both, the exercise of creating a prenup can be extremely beneficial as you and your future spouse begin to figure out what you want your life together to look like. 

For example, one important aspect of the prenup drafting process is full financial disclosure, where each partner provides the other with information about all of their assets and debts. Not only does this eliminate the potential for unwelcome surprises down the road, but preparing for full financial disclosure is a good reason to get your finances together! If your retirement accounts are scattered around at various investment firms from previous jobs, if you haven’t put together a budget, or don’t have a clear picture of your income and assets vs. your expenses, now is the time to sit down and figure it all out, or to update anything you’ve previously created.

What does the prenuptial process look like?

The prenuptial process can look a little different depending on your and your partner’s circumstances, and whether and who you hire to represent you, but the basic process looks like this:

1. Discussion
   You and your partner will discuss the idea of a prenup, and begin thinking about what terms you want to include. Our free prenuptial checklist is a good place to start. 
2. Disclosure
   You and your future spouse will gather information about all of your assets, income, and debt, and disclose it to each other. This process builds trust, eliminates surprises, and ensures you each have the opportunity to negotiate a fair and equitable agreement. 
3. Drafting
   Once you have figured out some of the basic terms and conditions you would like to include in your agreement, you can have an attorney (either yours or your partner’s) draft an agreement for you to review.
4. Negotiation
   Once you have an initial draft, you and your partner, through your counsel if you are both represented, will negotiate the terms of your prenup to come to an agreement.
5. Finalization
   Once you have an agreement that you and your partner are both comfortable with, you will enact it by signing on the dotted line in front of a notary. 
6. Re-affirmation
   After the wedding, it’s a good idea to “reaffirm” your prenuptial agreement by revisiting it, and re-signing. While this isn’t strictly necessary in most cases, it gives you a little extra protection in case you ever need to use your prenup. 
7. Revision
   After your wedding, you and your partner should regularly review and revise the terms of your prenuptial agreement to address your changing circumstances. A prenup is a living document that will be most effective if it’s kept current. 

Can we change or get rid of a prenup later on?

Yes, you can change or terminate your prenup at any time. As mentioned above, a prenuptial agreement should be a living document, and you should update it regularly as your circumstances change and you acquire assets, gain inheritance or other financial gifts, have children, etc. And, if for any reason in the future, you and your partner decide you would like to terminate your prenup, you can both agree in writing, to do so.  

Will a prenup always hold up in court?

Unfortunately, prenuptial agreements are not always ironclad. Prenups can be terminated or set aside by the court in certain cases; if they find that it was unfair, or that one party did not disclose all of their financial information, for example. The best way to make sure your prenup will hold up in court is to ensure both you and your partner hire qualified family law attorneys who can guide you through the process, and ensure that everything in your prenup is allowed by law. 

How do I ask my future spouse for a prenup?

It can be awkward to broach the topic of a prenuptial agreement for the first time. You may have concerns about your partner misinterpreting your intentions and getting offended, or thinking differently of you, for instance.

However, one of the less glamorous aspects of sharing your life with someone is that sometimes you have to have hard conversations, and now is a good time to practice. Here are some tips to help the conversation go as smoothly as possible.

• Bring it up early in your engagement (or even before the proposal!) to ensure you have ample time to discuss and come to an agreement on the topic without the pressure of an impending wedding date. 
• Schedule the conversation in advance, at a time and place when the two of you can be alone without distractions.
• Be clear and honest about why you want a prenup, and what you believe the benefits will be to each of you. You may want to cite specific examples of terms you’re interested in, and some you envision may benefit your partner. 
• Do your research ahead of time, and be prepared to answer questions. It may be a good idea to consult with an attorney before you speak with your partner, to ensure that you understand exactly what a prenuptial agreement entails, so you can give your partner correct and complete information. 
• Give your partner ample space and time to absorb and think it over. You may need to revisit the topic multiple times to resolve questions, and make a decision.
• Keep your cool. Your partner’s initial reaction could be one of shock, or even anger. Allow them to work through their emotions at their own pace. Stay calm, answer any questions they have, and don’t give up on the idea even if the initial conversation doesn’t go as smoothly as you hoped.

Takeaway

Despite the busy schedules, family drama, and other stress that often accompanies the holidays, this time of year can be a really special and joyful season for newly married couples, especially if you’re willing to do a little bit of advance planning and preparation to help ensure things go smoothly. And if the holidays don’t go as expected, or you just aren’t feeling very merry, don’t put too much pressure on yourself or your relationship - it’s also okay to just muddle through the holidays together if that’s what you need to do.