So you’ve decided that you need a premarital agreement (prenup). Whether you plan to create your own prenup or hire an attorney to create one for you, this article will help you think about some of the specific areas that you can cover. You may not cover all of the items I list. However, it is good for you to be aware that the items are issues that you should address.
- Assets, liabilities, etc.
You should be prepared to list your assets, liabilities, income, and expectations of gifts and inheritances.
You should be prepared to discuss the manner in which premarital and post-marital debts will be paid.
- Premarital Property at Death or Divorce
You should think about and discuss what will happen to your premarital property at death or divorce. You should also consider the post-marriage appreciation in the value of your property.
Be sure that you have considered each type of property, whether that property is jointly owned or individually owned.
- Property Acquired After Marriage
You should discuss and agree upon what will happen, at death or divorce, to the property that is accumulated after the marriage.
- Determine the Status of Gifts
You should determine the status of gifts, inheritances, and trusts that each person receives before and during the marriage.
- Retirement Plans
You should be prepared to select the person who is to receive each retirement plan in the event of death and/or divorce.
Consider whether a party will receive spousal maintenance at divorce. If yes, then determine the amount. If you determine that spousal maintenance is contingent on some event, then determine what event qualifies.
- Death Benefits
You should discuss your death benefits in detail. State what you will provide for in your will. You should also consider what role (e.g., executor) you want your spouse to play in administering your estate.
You should decide on the types of insurance coverage – medical, life, disability, etc. – you will have.
10. Identify Attorneys
You should identify the attorneys that will represent each party in the creation of the prenup.
11. Provide for Child Support and Custody
Some choose to discuss custody and child support matters. However, agreements concerning the children may not be upheld by a court in a divorce, because the judge may determine that the agreement is not in the child’s best interest.
12. Applicable Law
You should decide what state’s law will apply to your agreement. You should also decide what will happen in the event that you move to another state.
Some people like to include clauses that describe their expectations. For example, parties might want the agreement to say that the woman will agree to attempt to have or adopt children. Or the parties might want the agreement to say that each spouse will provide a loving environment for the other spouse. Some of these miscellaneous provisions may be unenforceable, but the parties choose to insert them because it helps them outline the emotional needs of the parties.