There are countless misconceptions surrounding prenuptial contracts. Many people believe that suggesting a prenuptial contract is a sign of a lack of faith in an upcoming marriage, and some may feel as though signing a prenuptial contract is essentially a precursor to a future divorce. The reality is that prenuptial contracts provide many advantages to marrying couples, including greater financial security and protection from each other’s debts. Prenuptial contracts are precious for individuals who control great wealth and numerous assets, as well as those who have financial commitments from previous marriages.
If you are preparing to marry in the Midwest and have financial concerns about your upcoming marriage, a prenuptial contract may provide the security you need to approach your marriage with greater confidence. Before you start drafting your prenuptial contract, there are a few things you should know about these agreements, how they work, and how to go about drafting an enforceable agreement.
Essential Elements of a Prenuptial Contract
Ultimately, there is no single blueprint that every prenuptial contract must follow. Every couple is different, and every marrying spouse will have different financial obligations, intentions, goals, and concerns. The process of developing a prenuptial contract is relatively straightforward. It’s even possible to find free software and affordable applications to help you draft your own prenuptial contract. This is an excellent way to start the process, but you should by no means assume that a prenuptial contract you have created yourself will carry the same legal weight as a prenuptial contract drafted with the help of an attorney.
What you need to include with your prenuptial contract will vary from couple to couple. However, as a baseline, it should include:
- Division of debt. One of the most commonly cited reasons for creating prenuptial contracts is financial protection from a spouse’s debts going into a marriage. Your prenuptial contract should clearly outline both spouses’ financial obligations and the debts they are bringing into the marriage. The contract should outline each spouse’s responsibilities for such debts and make it clear that the other spouse is not responsible for them in any way.
- Financial obligations during the marriage. This part of the contract relates to the first, outlining each spouse’s financial rights and responsibilities during the marriage. A couple can stipulate which one will pay which bills, how the couple will handle unexpected expenditures, and how they will manage basic household expenses. This section can help a couple determine their financial relationship in advance of marriage and ultimately improve communication between them.
- Estate plans. Estate planning should play an important role in prenuptial contract drafting. If you and your spouse already have your own respective estate plans, this part of your prenuptial contract may simply refer to those plans; otherwise, it is possible to outline some estate planning terms within the prenuptial agreement itself. One important thing to remember about this part of the prenuptial contract is that if you have an estate plan of some kind prior to creating your estate plan, you must ensure it aligns with the terms of your prenuptial contract. An experienced attorney can help you review existing estate plans and provide valuable guidance for incorporating relevant terms and conditions into your prenuptial agreement.
- Postnuptial terms. A prenuptial contract should also include a postnuptial clause that will serve as a roadmap for the divorce process should the couple decide to end their marriage. While it may seem cold to include such terms in a prenuptial agreement, the reality is that having the divorce process laid out in a legally enforceable contract can significantly streamline divorce proceedings and even prevent divorce, in some cases.
An experienced family law attorney is your best resource if you want to create a legally enforceable prenuptial agreement. They can help you tailor the agreement to your specific preferences and goals and help you ensure it will hold up in court should you need to refer to it in the future.
How to Make Sure Your Prenuptial Contract Is Enforceable
While it’s vital to ensure your prenuptial agreement includes all necessary items, it is equally essential to ensure it does not include certain things. First, your prenuptial agreement cannot include any terms and conditions regarding child custody. While you may include each spouse’s preferences as far as allocation of parental rights and responsibilities is concerned, you cannot create a firm child custody agreement within your prenuptial contract. If you divorce, you and your spouse must undergo a child custody determination just like any other divorce involving kids.
Your prenuptial contract also may not include any illegal or unconscionable terms. This means you cannot require your spouse to engage in any illegal activities or accept unreasonable burdens within your prenuptial agreement. Additionally, both spouses must sign the prenuptial agreement lawfully. They must both be over the age of 18 and be of sound mind when they sign their prenuptial contract. If anyone is compelled to sign a prenuptial contract under threat, undue influence, or while intoxicated by alcohol or drugs, the prenuptial contract is unenforceable.
Find the Right Attorney to Assist You in Drafting Your Contract
Ultimately, the best way to make sure your prenuptial contract includes everything it should and serves its intended purpose to the fullest extent allowable, it’s vital to work with an experienced family law attorney when drafting your contract. An experienced attorney will help you make sure the contract does not include any illegal or unenforceable elements and provides the legal protection you and your spouse expect from it. They can also help you revise your prenuptial contract over time. This is one thing many people overlook about prenuptial agreements; eventually, you will need to revisit and review your prenup to ensure it still holds applicable terms and conditions. This is especially true after significant life events like the birth of a child.
If you are unsure about how to go about creating your prenuptial contract, contact an experienced family law attorney as soon as possible and discuss your goals with them. They can help you understand the contract drafting process and provide peace of mind as you and your spouse-to-be draft your prenuptial agreement.