If you’re a woman getting married or you’re just curious about how prenups work, you may wonder “what should a woman ask for in a prenup?” It’s very important to be informed and prepared when discussing prenups. A prenup is a legal contract entered into by a couple before getting married or entering into a civil partnership.
When considering a prenup, it’s essential for both parties to carefully consider their needs, circumstances, and concerns. The specific terms of a prenup will vary based on the couple’s unique circumstances. However, there are several provisions that women can and should ask for in a prenup. These provisions will help to secure their future in the unfortunate case of divorce or the death of their partner.
What is the purpose of a prenup?
A prenup typically outlines the distribution of assets, debts, and other financial matters in the event of a divorce, separation, or the death of a spouse.
The primary purpose of a prenup is to establish the rights and responsibilities of each party regarding their financial affairs. Prenups are often used to protect the individual assets of each spouse, especially in situations where one or both partners have significant wealth. However, a couple does not need substantial assets to have a prenup.
Additionally, prenups typically cannot address issues related to child custody or child support. These matters are usually determined by the court based on the child’s best interests.
What are some standard terms of a prenup?
Some standard provisions that are often addressed in prenuptial agreements include:
- Asset Division: Clearly defining how assets, such as property, investments, and bank accounts will be divided in the event of divorce.
- Debt Allocation: Outlining how existing debts and future liabilities will be divided between the spouses.
- Spousal Support (Alimony): Specifying whether and how much spousal support or alimony will be paid upon divorce or separation.
- Business Interests: Addressing the treatment of businesses or professional practices owned by one or both spouses.
- Inheritance Rights: Clarifying the treatment of inheritances, gifts, and other windfalls and whether they will be subject to division.
- Retirement Accounts: Determining how retirement accounts and pensions will be divided.
- Real Estate: Detailing the treatment of real estate properties, including the joint family home, vacation homes, or rental properties.
- Dispute Resolution: Establishing the process for resolving disputes related to the prenuptial agreement, such as through mediation or arbitration.
- Sunset Clause: Specifying whether the prenuptial agreement will expire after a certain number of years or upon the occurrence of certain events (e.g., the birth of children).
- Financial Responsibilities: Outlining the financial responsibilities of each spouse during the marriage, including how household expenses will be managed.
Both parties must seek independent legal advice when negotiating and drafting a prenup. Family and divorce courts will only consider the prenup valid upon both parties receiving adequate counsel before getting married. The agreement should be fair, reasonable, and entered into voluntarily by both parties. Remember that the enforceability of specific terms within a prenup may vary from state-to-state.
What terms should women specifically ask for in a prenup?
Here are some considerations for women when discussing and negotiating a prenup:
Full Financial Disclosure:
Ensure complete and honest disclosure of assets, debts, and financial obligations for both parties. This is crucial for the prenuptial agreement to be valid and enforceable.
Asset Protection:
Consider how personal assets, such as property, investments, and businesses will be protected in divorce or separation. As a woman getting married, it is essential to consider the future when determining asset protection in a marriage.
Primary Home
- In the event of a separation or divorce, it may be beneficial for women to continue to live in the primary home. If that’s the case, then women should include a primary residence clause in the prenup. A primary residence clause specifies who will live in the primary home during the divorce and possibly for a period of time afterwards.
Divorce proceedings can take months or years until spouses are able to dissolve their marriage. Living together during this time can be difficult, uncomfortable and awkward. It makes sense for one spouse to leave the primary home during and after the divorce. This helps to maintain a sense of stability for the other spouse, especially if children are involved.
Life Insurance
- In the event of the unfortunate passing of a spouse, it may be beneficial for women to add a life insurance clause to the prenup. By adding a life insurance clause, you are legally requiring your partner to obtain and maintain a life insurance policy throughout the entirety of the marriage.
The life insurance clause should include the beneficiary and the coverage amount. The amount of coverage should be enough to cover any outstanding debts, recurring expenses and ongoing financial needs of the family.
Investments
- If both parties have income expectations, it may be beneficial to have discussions about saving and investing money. The prenup can dictate how income will be managed during their marriage.
For example, the prenup can state that the couple will share a joint bank account or investment account.
Additionally, the prenup can state that one spouse will contribute 10% of their income toward a mutually owned retirement plan.
Spousal Support (Alimony):
Clarify the terms of spousal support, including whether it will be paid, how much will be paid and for how long. Both parties should discuss their expectations and concerns regarding spousal support. If spousal support is not addressed in the prenup, a divorce court will apply the local state laws to determine whether it will be paid, how much and for how long.
Lump Sum Payment
- Spousal support can also be waived as an option altogether by including a no-alimony clause in the prenup. In lieu of alimony, a lump sum payment clause can be added to the prenup. A lump sum payment clause requires one spouse to pay the other spouse a “lump sum” of money in the event of a divorce or separation. The lump sum would be a fixed amount that is determined by both parties at the time the prenup is signed.
Inheritance or Gifts:
Discuss how future inheritances or gifts will be handled. A prenup can specify whether these assets will be considered marital property or separate property.
Inheritance
- If you are expecting an inheritance in your future, it may be beneficial for women to claim any inheritances as separate property. The prenup can protect any future inheritances and any inheritances that have already been passed down.
Wedding And Engagement Rings
- In the event of a divorce, it may be beneficial for women to determine how the rings will be distributed. The prenup can include conditions that state that the rings will remain with the owner, the rings will be returned to the purchaser, or the value of the rings will be repaid to the purchaser.
Debt Protection:
Clearly define how existing debts will be handled and whether each spouse will be responsible for their debts incurred during the marriage.
Premarital vs. Marital Debt
- If you have debt in your own name prior to getting married, it can be designated as premarital debt in the prenup. Any debt acquired during the marriage can be designated as marital debt.
Additionally, premarital and marital debt can be designated as a separate or joint responsibility in the prenup. If debt is designated as separate responsibilities, then the sole borrower is the only one responsible for repayment. If debt is designated as a joint responsibility, then both spouses are responsible for repayment.
Child Custody and Support:
Note that issues related to child custody and child support generally cannot be addressed in a prenuptial agreement. The court typically determines these issues based on the child’s best interests. However, custody and support terms can be included in the prenup when it applies to a pet.
Pet Custody
- Requirements can be added to the prenup that states how a pet will be cared for during and after the marriage. Determinations can be made on which veterinarian will be used, how the funds will be allocated to pay expenses, and what end of life terms will be chosen for the pet.
Additionally, the prenup can contain a pet custody schedule including who will have custody of the pet or how custody will be split between both parties.
Review Periods and Communication:
Consider including review periods in the prenuptial agreement, allowing both parties to revisit and modify the terms at specific intervals. These intervals should include important and exciting life changing events such as having children, earning promotions, starting businesses, changing careers, etc.
Open and honest communication is vital to entering a marriage or a civil union. Both parties should express their concerns, priorities, and expectations regarding the prenuptial agreement.
Ultimately, a prenuptial agreement aims to provide a fair and mutually agreeable framework for addressing financial matters in the event of a divorce or separation. It’s recommended for both parties to engage in the negotiation process in good faith and with a focus on understanding and respecting each other’s needs and concerns.
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Disclaimer: This article is provided as general information, not legal advice, and may not reflect the current laws in your state. It does not create an attorney-client relationship, and it’s not a substitute for seeking legal counsel. This site is a collection of articles that act as part of an advertising network for a marriage course. Do not take legal action based on this article without seeking legal advice from a lawyer licensed in your state.