5 Things To Know if You Are Considering a Prenup, According to a Divorce Lawyer

If you're getting married, you need to know this expert info.

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Young married couple signs the contract in the presence of their lawyer.
Prenuptial Agreement

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Young married couple signs the contract in the presence of their lawyer. Prenuptial Agreement

Photo by: Dobrila Vignjevic

Dobrila Vignjevic

As you and your partner prepare for marriage, the conversation around whether or not to get a prenup may pop up. While it might seem like an awkward or unromantic conversation to have before your wedding, there are a lot of benefits of getting a prenuptial agreement.

At its core, a prenup is an agreement that carves out the ownership of assets in the event that the marriage falls apart down the road. If you’re wondering whether or not this agreement is right for you, Jacqueline Newman, a divorce lawyer, shared five things that you should know if you are considering getting a prenup.

You Can’t Put in Anything Regarding Future Children

A lot of the details of a prenup relate to what could happen in the future if the marriage ends, but Newman shared that one thing that can’t go into a prenup are decisions around future children the couple might have together.

"You can’t put in anything regarding custody or child support for future children you and your partner might have," she said. "A lot of people come to me and say they agree now that they’d like to have joint custody of future children, but that’s not something we can put in the prenup."

The reason for that is it could be unfair and even go against the child’s best interest down the road, based on future circumstances.

However, a couple can decide ahead of time how they want to handle spousal support in the event of a divorce when they have kids.

"You can include in your prenup that you want to waive spousal support, also called alimony maintenance," she said. "The couple can decide if there's going to be spousal support and if there is going to be spousal support, what formula they want to use, or if they don’t want to include anything about that now."

You Can Do a Postnup Instead

If you decide to put off doing a prenup, Newman said you still have options once you get married.

"Couples can enter into a postnuptial agreement if they don’t have time to do a prenup before the wedding or if they decide they want to do something after the fact," she said.

However, Newman mentioned that a postnuptial agreement is sometimes harder than a prenup to negotiate.

"In a prenup, a couple is inclined to negotiate because if they both don’t sign the document, they won’t get married," she said. "In a postnup, they are already married, so if someone doesn’t sign it, there’s not that type of negotiation leverage."

It’s Helpful for Both People to Have Their Own Lawyer

When it comes to creating a prenup, every state’s process and requirements are different. Some states won’t require you to work with a lawyer when drafting your prenup. However, Newman shared that if a couple does decide to get legal counsel for their prenup, it can be beneficial for each of them to have separate lawyers.

"It is very important that people have separate attorneys because each person’s lawyer can review the prenup from the vantage point of how it would impact that individual person," she said. "When I review a prenup I share with my client how their rights may be enhanced or decreased in the agreement. Based on the prenup drafted, I share with them exactly what would happen in the event of the divorce and see how they feel about it. From there, we make changes or suggestions."

While it might not seem romantic to go through the prenup process and hire separate lawyers, Newman said it’s just a temporary process.

"Once the prenup is drafted and signed, the hope is you both put it in a drawer and never take it out again," she said.

You Can Make Changes to Your Prenup

The idea of drafting a prenup and deciding the details of what should go inside can seem stressful, but Newman shared that your prenups don’t have to be permanent and you can make changes to the document at any time.

"You will want to have your attorneys involved when making modifications to your prenup and you would go about the process in the same manner upon which the original prenup was created," she said.

If you and your partner agree on signing a prenup now, it’s helpful to know that as life evolves, you can always go back and edit what is inside later on.

You Don’t Have to Be a Millionaire to Have a Prenup

While it might be easy to assume that prenups are just for the super wealthy who have millions of dollars in assets to protect, Newman shared that’s not the case.

"People get prenups for all different reasons," she said. "Some get one just in case they come into money one day and others get one because they are entering second marriages and they have children from the first marriage or things they want to protect. It's not necessarily only for the rich."

Newman said that anyone who wants to understand what their finances would look like upon a divorce or want to protect existing or future assets could benefit from having a prenup in place.

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