Frequently Asked Questions About Prenuptial Agreements: Part 1

The are many rumors and myths about prenuptial agreements. People think they symbolize mistrust, that they are only for the wealthy, or that they are meant to victimize the spouse who is less wealthy. The reality is far less scandalous. To help you learn more about these prudent contracts, our experienced family law attorneys at Oxendine Law are answering some of the most common questions about prenuptial agreements in our two-part blog series.

What types of information and decisions will a prenuptial agreement include?

First of all, it’s important to realize that your prenuptial agreement is unique to you and your spouse. There is not a set list of decisions you have to make in your contract or a limit to the number of points you can include. You do, however, need to make sure that all the clauses in your agreement are legally enforceable.  Also, there are important distinctions between contracts made in contemplation of marriage and contracts made in contemplation of divorce which dictate the requirements of the contract, as well as how it is later enforced.  These are some of the reasons you need the help of a family law attorney: to make sure you know what you’re agreeing to and that you don’t include unenforceable clauses.
With that being said, most prenuptial agreements set up provisions about how to divide assets when the marriage ends, especially if it ends in divorce. They need to include the details of each spouse’s assets, debts, and incomes, and they can also establish how you’ll deal with unique circumstances like gray areas between marital property and separate property. For instance, if you use one spouse’s premarital assets to pay off the other spouse’s debt, does the spouse who had the debt need to reimburse the other spouse upon a divorce? Your prenuptial agreement can cover this and more.

If I’m not planning to get divorced, I don’t need a prenuptial agreement, right?

Almost no one gets married assuming that they’ll eventually get a divorce. People change and circumstances change over the years, so it’s never impossible. A prenuptial agreement is a protection that any couple can benefit from.

Keep in mind that prenuptial agreements don’t just deal with divorce. They can also make provisions for what happens when one spouse passes away. For example, perhaps you are getting married, but you have a child from a previous relationship. By default, in the state of Georgia, all of your assets will typically go to your spouse if you die first. As a result, your previous child may not receive anything from your estate. In a prenuptial agreement, you can specify the inheritance your child will receive if you pass away first.

Another helpful aspect of prenuptial agreements is that they require both spouses to disclose all of their premarital assets, debts, and incomes. This protects you from a situation in which you marry someone and then find out they have massive amounts of unmanageable debt. It can also spark important financial conversations that every couple should have before they get married.

I’d love the security of a prenuptial agreement, but I’m already married. Did I miss the boat?

Not necessarily. By definition, a prenuptial agreement can only be put in place before you get married. However, you can make all of the same provisions and arrangements in a postnuptial agreement if you are already married.

As similar as “prenups” and “postnups” are, they have one key difference. With a prenuptial agreement, you have more negotiating power because you can refuse to marry your fiancé until you’ve reached a contract that you feel is fair. When you’re creating a postnuptial agreement, you’re already married so you don’t have that bargaining chip.

Marriage is a huge step in life, and not just because of the commitment it symbolizes. It also marks the moment you legally and financially merge your life with someone else. As stressful as that can be, a prenuptial or postnuptial agreement can help you retain some stability and protection in case the marriage ends in a divorce. The information above is just a start. For more insights into prenuptial and postnuptial agreements, contact our family law attorneys and keep an eye out for the second part of this blog series as well.