To Prenup or Not Prenup?

Heart-shape Prenup card ripped in half on wood background next to a pen
One of CA’s best family law attorneys, Peter m. Walzer,  discusses if you should get a prenup.

[Source: Ultimate Wedding]

You’re about to marry the love of your life but before you do you will have to deal with some unpleasant realities such as what happens if the marriage ends — either in divorce or death.

Perhaps you need a prenup or maybe you are asked to sign a prenup — either way you will have to hire an attorney to address some difficult decisions.

Who should get one? Anyone who is wealthy and has significantly more assets than their future spouse. For older couples, saying “I do” a second or third time, it definitely makes sense in order to protect their existing children’s inheritance from another marriage that doesn’t end “till death do you part.”

Even if you are in your 20s and expect to be rich you should consider a prenup if you own a business or need to protect a unique idea, software, or a screenplay. On the other hand, if you’re broke and your partner isn’t, a prenup isn’t necessary. But if your partner insists on one, insist on a fair agreement.

Prenups are powerful contracts that spell out who gets what in case of divorce and death.



Without a prenup, all property and assets acquired during marriage are considered marital property and are usually split 50/50.  In some states, even premarital assets are marital property and can be divided.

Prenups are often ice water on romance.  How do you bring it up to your loved one? The best way is to bring it up directly — not through lawyers, parents or other loved ones. When you ask for a prenup, the response may be “Don’t you trust me?” You must be prepared to explain why you want one and what it means for both of you. The agreement may be a take-it-or-leave-it deal or an opening for negotiation. It may be worthwhile to meet with a marriage counselor or mediator to agree on the terms with the idea of a prenup.

But you can’t suggest a prenup a week or so before the wedding. For one, it’s not fair and such a last-minute agreement may invalidate the prenup. Both parties must have lawyers to iron out the details.

So, what’s actually in a prenup? Some eliminate marital property altogether, others may select certain assets as “off limits” in a divorce. Most agreements endure for the entire marriage. While others “sunset” or end after a period of time.

Some states allow a limitation on alimony. Whatever limitations, the agreement should be viewed in the context of financial planning and protection for both spouses.

A wealthy individual whose future spouse refuses to sign any kind of prenup should be prepared to stay single. And the non-wealthy should avoid signing a prenup that does not provide for some kind of transfer of wealth.

So, what shouldn’t be in a prenup? Matters addressing “lifestyle”. For example, putting in penalties for unfaithfulness or substance abuse or clauses requiring regular intimacy are completely unenforceable. Agreements establishing custody or limiting child support will be thrown out in court as well.

Getting a prenup doesn’t have to be the end to romance. It may be a good idea that allows the couple to communicate honestly. A wealthy person shouldn’t lose a fortune in divorce and neither should the other spouse walk away empty-handed.