By Julia Rodgers, Esq.
Anyone who plans to get married should get a prenup! It is a common misconception that prenups are just for the wealthy. Instead, a prenup can benefit most couples, regardless of how much income they earn or assets they possess. If you have income or assets now, or may accumulate any in the future, you should consider a prenup prior to marriage.
Many women feel uncomfortable when it comes to discussing this topic, because prenups have developed a reputation as protecting the wealthier man in the relationship and leaving women destitute in the event of a divorce. This could not be further from the truth! A prenup can protect women by allocating assets or funds to them throughout the course of the marriage or in the event of a divorce. Why does it matter? For example, if you decide to leave your job to stay at home with your children for a few years, those financial allocations act as a tool to achieve a more financially equitable marriage.
A Prenuptial Agreement Helps Facilitate Important Conversations
Finances are a leading cause of divorce in the United States, and the best way to set your marriage up for success is to talk about these unromantic details before tying the knot. By fully disclosing income, assets and debt to your future spouse, you can really dig into your long term goals for your lifestyle within the marriage. A prenup helps facilitate this conversation about money.
- Are you in debt? Discuss how that debt is going to be paid.
- What are your saving vs. spending styles? Make sure you are on board with how you each view finances.
- Is this a second marriage? If you or your future spouse have children from a prior relationship, discuss how this prenup protect their potential inheritance.
What Happens if You Don’t Have a Prenup
If you do not have a prenuptial agreement in place and you get divorced in the future, the divorce law of your state will determine how your income and assets will be divided. States operate under one of two different theories when it comes to property. What is considered “separate property” (property that is just yours) versus what is considered property of the marriage (property subject to division in a divorce) depends largely on what theory your state operates under. Generally, states operate under either:
- Community Property (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin); or
- Common Law / Equitable Division aka Equitable Distribution.
If you live in a community property state, like California for example, the property that you acquired during your marriage will be subject to a 50/50 split. Keep in mind, individual state divorce statutes vary, and some community property states may alter this definition of what is considered ‘community.’
In the remainder of states that operate under equitable division a.k.a. equitable distribution, marital property may be split equitably, but not necessarily equally. How assets and debt are divided depends on a multitude of factors that can be complicated, and vary depending on each state’s statutes or case law. The key takeaway here? Courts have tremendous discretion when determining the division of YOUR property.
If you don’t specify before marriage what will happen to your income, assets or debt in the event of a divorce with a prenuptial agreement, then you are allowing default state law to decide for you.
About the author
Julia Rodgers is a family law attorney and CEO of HelloPrenup.com