What Is In A Prenuptial Agreement Anyway?
We promised last time to talk about what should (and shouldn’t be) in a prenuptial agreement (a.k.a. the premarital agreement/property agreement). Like nearly any other legal agreement, what goes in the agreement is going to be different depending on your particular circumstance. But as you move forward in your relationship and plan for the future, we can’t say it adamantly enough: you ought to have one.
We outlined some of the reasons why last time, but here are some of the things you should plan on addressing in your agreement:
Real Property. Who will own the marital home if you divorce? Who will own the beach cottage? What if they are sold? How will proceeds be divided?
Tangible Personal Property. Who is going to get what stuff (e.g. jewelry, artwork, furniture, TVs)?
Separate v. Marital Property. What property is yours alone? What property belongs to the marriage?
Debt. What will happen to the premarital debt that one or both of you have acquired? What will happen to debt accrued during the marriage (credit cards, mortgages, etc)?
Alimony. Does one of you make more money than the other? Is one of you going to stay home with the children? How long will you need alimony? How much alimony will you need?
Retirement. What will happen to it? Who will you each name as beneficiaries? If you divorce, will you share? Will each person keep their own?
Death. You’ll need wills and/or trusts to distribute your estates after your respective deaths, but you should have a meeting of the minds about what your respective intentions are and you should memorialize those intentions in your agreement.
Insurance. You might consider disability and life insurances, too, who is going to pay for them, and who is going to hold them (particularly if someone is making significantly less than the economically dominant spouse, though you should keep in mind that disabilities and deaths can affect anyone at anytime).
Gifts and inheritances. These are normally considered “separate property,” but what if the couple receives a gift? How will you divide it? What if it’s a gift to you both from your biological Aunt Ida?
Pets. Who will get custody?
Duties. Who is going to do what during the marriage?
You should also include a list of your respective assets, liabilities, and property in the agreement, too.
You can’t cover the following:
Custody of the children. Whether they are born or just a twinkle in your eye, the abiding test for children is their best interests. Now, you might consider a Parenting Agreement as a separate document, but that’s a different question for a different day.
Child Support. See #1.
Illegal acts. Duh.
Unconscionable acts. If it’s grossly unfair or shocks the conscience, you can’t include it in the agreement.
If you do decide to get a prenup (and we hope you do), it’s always advisable that each person in the couple have their own, separate counsel.
As always, we welcome your questions and encourage you to ask them before your Big Day.
Heather & Emily
Heather McCabe and Emily Russell are family law practitioners who regularly serve the LGBT community in all kinds of legal affairs – from adoptions to dissolutions/divorces. McCabe has taught family law and legal writing and has been on the faculty at Georgetown Law, American University, and University of Baltimore. Russell worked as a lobbyist before coming to the law. Whether through document drafting, mediation, collaborative law, or litigation, McCabe and Russell are committed to the creation and security of the unique families they serve.