The complex world of relationships, marriage, and divorce is never simple, especially regarding prenuptial agreements. Often referred to as a "prenup," this legal contract outlines how a couple's assets and debts will be divided if their marriage ends in divorce. But how long does a prenup last? Let's unpack this multifaceted topic together.
Who Should Get A Prenuptial Agreement?
While prenups were once considered taboo, they've become increasingly common in recent years. A survey by the American Academy of Matrimonial Lawyers found that 62% of divorce attorneys saw increased prenups over the past few years.
Who should consider getting a prenup? Here are a few scenarios where it might make sense:
- One partner has significantly more assets or earning potential than the other
- One or both partners own a business
- One partner has children from a previous relationship
- One partner expects a large inheritance
- One or both partners have substantial debt
It's important to note that a prenup isn't just for the wealthy. Anyone with assets they want to protect, whether a small business, a piece of real estate, or even a treasured collection, can benefit from a prenup.
How Do Prenuptial Agreements Work?
A prenuptial agreement is a contract signed by a couple before marriage. It typically outlines:
- What assets and debts each partner is bringing into the marriage
- How those assets and debts will be divided in the event of a divorce.
- Whether either partner will receive alimony (spousal support) and for how long.
- Each partner's rights and responsibilities during the marriage
For a prenup to be enforceable, both parties must fully disclose their financial situation and agree voluntarily. Each partner should also have their attorney review the document before signing.
Once the prenup is signed, it goes into effect as soon as the couple gets married. If they divorce, the terms of the prenup will guide how their assets are divided unless a court finds the agreement invalid or unfair.
Can You Change A Prenuptial Agreement?
Life is unpredictable, and what made sense for a couple when they first got married may no longer work five, ten, or twenty years down the line. So, can you change a prenup after the wedding?
The short answer is yes, but it's not always easy. To amend a prenup, both spouses must agree to the changes in writing. This is typically done through a postnuptial agreement, similar to a prenup but signed after the marriage.
However, some prenups include a "sunset clause" that specifies a date or event (like the birth of a child) when the agreement will expire. If your prenup has a sunset clause and that time has passed, the deal is no longer valid, and you'll need to create a new one if you want to continue protecting your assets.
What to Expect If You Get Divorced But Have a Prenup
If you have a prenup and get divorced, the process will likely be smoother than if you didn't have an agreement. Instead of fighting over who gets what, you'll already have a roadmap for dividing your assets.
Of course, that doesn't mean it will be easy. Emotions run high during a divorce, and one or both spouses may try to contest the prenup, especially if they feel like its terms are unfair.
If your prenup is challenged, a court will typically look at whether:
- There was full financial disclosure by both parties
- Each spouse had adequate time to review the agreement and consult with their attorney
- The terms of the agreement are highly one-sided or unfair to one spouse
- There was any coercion or duress involved in signing the prenup
Assuming your agreement is deemed valid, the terms of your prenup will dictate how your assets and debts are divided. This can streamline the divorce process and save you time, money, and stress compared to a traditional divorce, where everything has to be hashed out in court.
Does Cheating Nullify a Prenup?
Infidelity is one of the most common reasons marriages end in divorce. If you have a prenup, you might be wondering: does cheating nullify the agreement?
In most cases, the answer is no. A standard prenup typically won't address infidelity directly or include provisions for what happens if one spouse cheats.
However, some couples choose to include an "infidelity clause" in their prenup that stipulates specific financial penalties if one partner is unfaithful. For example, the cheating spouse may have to pay a lump sum to the other spouse or forfeit their share of certain assets.
It's important to note that infidelity clauses can be tricky to enforce, as you have to prove that cheating took place. They also may not hold up in court, especially in no-fault divorce states where the reasons behind a divorce aren't considered in the division of assets.
If your prenup doesn't mention infidelity and you get divorced because one spouse cheated, your assets will still be divided according to the terms of the agreement, regardless of who was at fault.
How are Assets Divided in a Prenup?
One of the primary purposes of a prenup is to specify how a couple's assets will be split up if they divorce. This can include:
- Real estate, including the marital home
- Bank accounts and cash
- Investments, stocks, and bonds
- Retirement accounts like 401(k)s and IRAs
- Businesses owned by either spouse
- Personal property like vehicles, furniture, and jewellery
Without a prenup, these assets would typically be considered marital property and subject to division according to your state's laws, which often aim for an equitable (though not necessarily equal) split. With a prenup, you have more control over how your assets will be allocated.
Your prenup can specify that certain assets will remain separate property, meaning they'll stay with their original owner in the event of a divorce. This is common with assets acquired before the marriage, inheritances, and gifts given to just one spouse.
The agreement can also dictate what percentage of the marital assets each spouse will receive. Some couples opt for a 50/50 split, while others may negotiate a different ratio based on factors like their individual incomes and contributions to the marriage.
Can a Prenup Include Child Custody and Support?
While a prenup can cover a wide range of financial issues, there are some things it typically can't include. One of those is child custody and child support.
In most states, courts have the final say in matters involving children and are required to make decisions based on the child's best interests. That means you generally can't predetermine custody arrangements or child support payments in a prenup.
However, you can include provisions related to your children's financial well-being, like specifying that certain assets will be set aside for their education or establishing trust funds in their names. Remember that the court can always modify these provisions if they're not in the child's best interests.
The Process of Getting a Prenup
If you're considering a prenup, the first step is to have an open and honest conversation with your partner. You must be both on the same page about your financial goals and expectations for the marriage.
Once you've agreed to move forward with a prenup, you'll each want to hire your attorney. Even if you don't anticipate your prenup being contested, both parties must have legal representation to protect their rights.
You'll then work with your attorneys to negotiate the terms of the agreement. This can involve some back-and-forth and may take several drafts before you arrive at a final document you're both comfortable with.
It's best to start this process well before your wedding day, as you'll want to have plenty of time to review and finalize the agreement without the added stress of last-minute wedding planning. Most experts recommend signing a prenup at least 30 days before the marriage.
What are the Reasons to Contest or Void a Prenup
While the goal of a prenup is to provide clarity and protection, there are situations where one or both spouses may want to challenge the agreement. Some common reasons a prenup might be contested or voided include:
- One spouse didn't fully disclose their assets or debts
- One spouse was pressured or coerced into signing the prenup
- The terms of the prenup are incredibly unfair to one spouse
- The agreement was signed too close to the wedding date
- The prenup includes provisions that are illegal or against public policy
If a court finds that a prenup is invalid for any of these reasons, the agreement will be set aside, and the couple's assets will be divided according to state law as if no prenup existed.
What are the Factors Affecting the Duration of a Prenup
Here are some factors that can affect the duration of a prenup:
- Sunset clauses: As mentioned earlier, some prenups include provisions that cause the agreement to expire after a certain number of years or upon a specific event, like the birth of a child.
- Amendments: If both spouses agree, a prenup can be amended or updated during the marriage through a postnuptial agreement.
- Divorce: If a couple has a prenup divorce, the agreement will remain in effect until the divorce is finalized and all assets have been divided according to its terms.
- Death: A prenup can also specify what happens to a couple's assets when one spouse dies, often in conjunction with a will or trust.
Assuming the prenup is valid and doesn't include a sunset clause, it will typically remain in effect indefinitely or until the couple agrees to change it.
What Cannot Be Included in a Prenuptial Agreement?
While prenups offer a lot of flexibility, there are some things they can't legally include:
- Anything illegal: A prenup can't include provisions that break the law, like an agreement to engage in criminal activities.
- Child custody and support: As noted earlier, courts have the final say in matters involving children.
- Personal matters: Prenups are designed to address financial issues, not personal ones. You typically can't include non-financial obligations like who will do the chores or when you'll visit in-laws.
- Encouraging divorce: A prenup can't include anything that might encourage or incentivize divorce, like a clause stating one spouse will get a large payout if they leave the marriage.
- Unfair or one-sided terms: While couples have a lot of leeway in deciding the terms of their prenup, the agreement can't be so drastically unjust that it's deemed unenforceable.
Working with an experienced attorney who can help ensure your prenup includes only valid, enforceable provisions is essential.
Conclusion
Prenuptial agreements can be a smart way for couples to protect their assets and provide peace of mind as they enter marriage. But like marriage itself, prenups are complex and can vary greatly depending on each couple's unique situation.
There's no one-size-fits-all answer to how long a prenup lasts. While some may include sunset clauses that cause them to expire, others may remain in effect until the couple divorces, one spouse dies, or they mutually agree to change the terms.
Ultimately, the key to a durable and effective prenup is open communication, full disclosure, and a balanced approach that feels fair to both partners. With careful planning and the guidance of experienced attorneys, a prenup can provide a solid foundation for your financial future together.
Also Read: How to Protect Yourself When Marrying a Foreigner
