The What and Why of a Prenuptial Agreement
A prenuptial agreement, commonly called a “prenup”, is a contract entered into by two people prior to getting married. The prenup specifies the intent that the couple has for ownership and distribution of their property if the marriage ends by divorce, dissolution, legal separation, etc.
There are two types of property classifications in a marriage, marital and separate. Under Ohio law, marital property is any asset that is acquired during the marriage or used for marital purposes, and marital property is subject to equitable distribution in the event of a divorce. While this method is meant to be fair and equitable, it can sometimes leave one spouse feeling jilted, especially if, for example, half of the business you built up during the marriage ends up going to your ex-spouse in the divorce.
Prenuptial agreements are a good way to protect yourself and your spouse if you divorce, even if that is the last thing on your mind as you plan a wedding. You can both agree how you would like your assets to be classified, specifying what will be separate property and kept by the owner, and what will be marital property and subject to equitable distribution. A prenup also can help both you and your future spouse by cutting out a large part of potential litigation in a divorce over assets.
The How and When Part
Step One:
If you haven’t already, you will also want to talk to your future spouse about signing a prenuptial agreement. Ideally, both you and your future spouse will be on board with the idea. However, some people view prenups as an indication that you are planning on getting a divorce before the marriage even begins. While this is rarely the case, you may need to have a serious conversation with your future spouse about the benefits of a prenup and what you both want it to include.
Hint: You should have this conversation sooner rather than later, because figuring out the terms of your prenuptial agreement the week before the wedding is not a great idea.
Step Two:
Contact a lawyer who has experience in prenuptial agreements, generally this would be an attorney who practices in family law. Prenups need to be worded very specifically and tailored to you and your future spouse’s intentions. The last thing you want is a poorly or misworded prenup which down the road could lead to interpretation issues.
Step Three:
You and your future spouse must disclose all assets and liabilities that each of you has to the other at the time of entering into the agreement. The best way to go about this is to talk to your future spouse about your property interests and debts, and to list everything out. This list should be attached to the prenuptial agreement itself, so that way there are no disputes about it in the event of a divorce.
Step Four:
Once your lawyer has drafted the prenuptial agreement with you and your future spouse’s terms, your future spouse should obtain their own lawyer to review the agreement with them separately. While this is not necessary, it is a good idea just to be sure your future spouse truly understands the agreement and can have any questions answered by an independent lawyer. This is again a further step to assure there are no disputes in the event of a divorce.
After the prenuptial agreement has been finalized and both you and your future spouse agree to the terms, then you both will just need to sign and execute the agreement with two witnesses present. With this being finished, you have one less thing to worry about and can look forward to your big day.
Step Five:
Relax and enjoy your big day.