Premarital Agreement Checklist
Some things to consider when you're making a prenuptial agreement.
There are lots of last-minute details that pop up when you’re in the throes of wedding planning; however, a prenuptial agreement (also known as a premarital agreement) shouldn’t be left to the last minute. Here’s a list of issues to think about before you speak to your fiancé and your lawyer regarding a premarital agreement. It often helps to know your own feelings about these issues before approaching your fiancé about them:
Premarital assets and debts
"Premarital" assets are any assets that you acquired before your marriage to your fiancé. This can be any type of property, such as your savings and brokerage accounts, pensions and retirement funds earned up through the date of the wedding, a car, jewelry, a home, or employee stock options. Premarital assets fall under that category of “separate” property in California, along with any gifts or inheritance you received either before or during the marriage. Generally speaking, separate property belongs to the spouse that acquired it.
Before entering into a prenup, you’ll want to make an exhaustive list of all assets and debts you own; both spouses must make full and fair disclosures to the other about all of their assets and debts. It’s also good practice to be up front and straightforward in your discussions about financial issues with your soon-to-be spouse.
Below are some questions to think about once you’ve made your list of premarital assets and debts:
- How will you handle premarital assets and debts during the marriage and in the event of a divorce?
- Will your separate property become intermingled or “comingled” with your marital property? Or will the assets and debts remain separate property, meaning that they will go back to the spouse that acquired them before the marriage?
- What if one spouse’s premarital property is used to pay off the other’s premarital debts (for example, school loans)? Will the paying spouse be reimbursed, or is it a gift?
- What if you use premarital property to buy a home you’ll own together? Will the paying spouse need to be reimbursed, or is it a gift?
Marital property describes the assets and debts that you will accumulate as a couple, once you're married. Below are some questions to think about regarding marital property:
- How will you handle the income and assets you accumulate together?
- Will they be owned jointly and equally (50/50)?
- Will you use another arrangement?
Management of assets and income
People tend to be either spenders or savers. Given that opposites attract, it’s typical for a couple to have very different money styles. That can work out just fine, provided that you each know about the other’s priorities and goals and provided you can work out a way for each person’s needs to be met. For example, one partner might be concerned about retirement savings and future security. The other partner may feel that money is to be enjoyed and spent for things like vacations and luxury vehicles as part of a well-lived life. Can these styles be reconciled? The answer is yes, of course, provided that you have a plan for what will be set aside for retirement and what’s available to use for enjoyment. Some questions to ask yourself regarding the management of assets and income are:
- Who will make the financial decisions and handle the checkbook? Will you do it together, or will one person be the primary financial manager? What about large expenditures? Does your spouse need to ask you before buying that plasma TV or designer gown?
- How will the household bills get paid, and whose responsibility is it to pay them?
- Will you have joint bank accounts, separate bank accounts, or both?
- Do you have similar money styles? With respect to debt? With respect to savings?
- Have you discussed your long-term financial goals, and how each of you will contribute?
- Will the decision-making authority be different for premarital property or debt that belonged to one of you before the marriage?
- If one of you owes spousal support or child support from a previous marriage, how will those payments be made? From joint property or income, or separate property? In the event of a separation or divorce, would the other spouse want or expect a reimbursement for these payments made during the marriage? What if the obligation is informal – like voluntarily paying for an adult child’s college?
Credit and debt
Have you seen each other’s credit reports? Now might be a good time to have a serious talk about credit scores and priorities with respect to paying off old debt or accumulating new debt. Consider some of the following questions:
- Is it likely that either of you might over-borrow? Or refuse to borrow no matter how much sense it makes to the other person?
- Consider joint credit issues, as well as issues like pledging your home as collateral on business, or using a home equity line of credit to fund a business or tide it over in an economic downturn.
- Does either of you have bad credit? Will you and your spouse jointly sign on new credit obligations?
- Are back taxes owed? If so, how will they be paid? Jointly, individually, and from which checkbook?
What are your views on non-monetary contributions, like raising children or managing the household? Most states recognize these types of contributions during a marriage, but it’s important that you share your attitude, and that you know your fiancé’s attitude about these types of roles in a marriage. Below you will find some questions to think about in regards to work:
- What is your expectation about the kinds of jobs and income you will each have?
- Do either of you anticipate a career change at any point in time?
- Other jobs pay less but are very personally rewarding. Teachers and non-profit positions typically don’t pay very well. How would you feel if your spouse changed careers for a lower-paying but rewarding position?
- When do you plan to retire? As early as possible, or do you plan to work as long as you’re able
- Do you anticipate both of you continuing to work after having children? Or would one of you stay home? For how long?
- How will you handle move-away decisions?
- What if one of you was transferred for your work and had to move to another state?
- What if one of you wanted to move closer to extended family after having children?
How do you feel about alimony, also called spousal support? You don’t have to address this in your agreement if you don’t want to, but it makes sense to talk about it. Some issues you may want to talk about are the following:
- Will there be any limitations on the amount, terms, and duration of support in the event of a divorce?
- Do you want to make agreements about spousal support or alimony that are different than what your state law allows?
- Do you both expect to work and contribute to the household?
This discussion may be difficult to have while you and your partner are trying to plan a romantic wedding celebration, but if you want to enter into a prenuptial, a conversation that covers these and other topics is essential.
In order to make sure your prenup is going to be found valid and enforceable, it’s best if it's written by attorneys, and that both you and your spouse have independent counsel that can provide individual advice on each person’s rights and responsibilities. You cannot have one attorney represent you both. An attorney can explain how specific terms in a prenup will affect your rights, and can negotiate for changes to the agreement on your behalf.
If you have questions about a prenuptial agreement, you should contact an experienced family law attorney in your area for help.