It’s 2006 and you’ve just met the love of your life at Comic-Con.  You bonded over your mutual love of Star Trek and your mutual hatred of everything Star Wars. 

Fast-forward 5 years and you’ve married this soulmate and welcomed twins and a dog to your white picket-fenced bungalow.  Talk about picture-perfect. 

Fast-forward another 5 years and you discover the unthinkable while spring cleaning.  Your perfect match isn’t a perfect match after all.  You’ve found his hidden Star Wars collection in the back of his closet.  Your whole relationship was built on lies.  You are heartbroken and start throwing out words you never thought you could say to another person, let alone someone you loved.  He moves out and you file for divorce.  You spend nearly 8 months arguing about custody arrangements for the dog, alimony you refuse to pay, and who gets the credit card debt.  By the end, you’re divorced, but you feel defeated, hurt, and alone. 

Let’s reimagine this.  Before you got married, you both sat down and decided what would happen if your marriage came to an end.  You committed it to paper, signed it, and stuck it in a drawer.  So, when you found that secret Star Wars affair, you pulled out that paper, filed for divorce, and in 90 days, the two of you were officially single again.  You still don’t like him but you also haven’t spent everyday fighting, you haven’t been making courtroom appearances, and you haven’t had to shout in front of the kids.  Your marriage is over and you are okay.

The difference? A piece of paper, a prenup.

What is a prenup?

A prenup, or more formally a prenuptial agreement, is a legally binding agreement (i.e. a contract) that two people enter into prior to marrying each other.  A standard prenup explains who gets what property (real and personal) and payments (alimony) if they decide to divorce.  However, prenups also address how issues are decided during a marriage, too.  Those are called lifestyle clauses.  For example, you could include date nights in your prenup.  You could decide how many date nights the two of you will have in a month and set a penalty, let’s say $100, for each month your spouse doesn’t make the time to be with you. 

What is in a prenup?

In your prenup you will disclose all of your assets and your debts.  You will mark your assets as joint or separate property.  The reason for that distinction is the property you enter into a marriage is separate property and belongs just to you.  Any inheritances you are the beneficiary of, before or after marriage, are also separate property!  The prenup governs marital property – any joint property before marriage and then anything you acquire during the marriage.  You must also disclose your debt so that your partner is fully aware of what you are bringing into the marriage.

After you disclose assets and debts, you add the information about how it will all be split.  Whether you wish to split the assets and debts 50/50 or 75/25 or something in between, a prenup takes the decision out of a judge’s hands and gives you and your partner the power to decide (while you like each other). 

You will also decide if either partner will receive or pay support to the other.  These payments are often included when there is a large income disparity between the two.

Again, you can include lifestyle provisions, if desired.  A popular lifestyle provision is about handling finances during the marriage, for example, who pays what bills; are checking accounts joint or separate; or do you have a spending limit before the other spouse is notified?

What happens if I don’t have a prenup?

If you are contemplating divorce and don’t have a prenup, it’s going to be fine.  You should consult a divorce lawyer for guidance on how to file for divorce.  Once you file your divorce complaint, you and your spouse, or if the two of you have hired attorneys, your attorneys will negotiate how to divide the assets and debts.  If the two of you cannot come to an agreement then a judge will decide the division. 

In Pennsylvania, most judges advocate for a 50/50 split, assuming the spouses have similar income, assets and debts.  If that is not true, and one spouse is “better-off” than the other, then the court will help to award the lower earning spouse a larger percentage of the marital assets and a smaller percentage of the marital debts.  Separate property and separate debts will remain separate, but will be considered by the court to determine the financial state of each spouse.

If you are married and intend on staying married but didn’t have the foreknowledge to get a prenup, it isn’t too late.  You and your spouse can agree to a postnuptial agreement, or a postnup.  It is the same idea as a prenup, it just occurs after you get married.  Yes, they are enforceable in Pennsylvania.

Do prenups work?

You betcha!  Prenups are contracts.  Contracts are legally binding agreements that a court will enforce.

Do prenups ever fail?

Yes.  Pennsylvania requires a full disclosure of assets and debts from both partners in a prenup.  Prenups will be thrown out if it is revealed a spouse neglected to share something. 

Prenups also fail if it is shown that one spouse coerced the other into signing a prenup. 

The best way to avoid these issues is to have a lawyer draft your prenup and have your partner get his own attorney to review the document with him before signing.

But do I really need a prenup?

Yes, you do.  If you don’t like risk, get one.  If this is your second marriage, get one.  You have a financial state that looks a lot different from your partner? Get one.  If you truly believe you will never get divorced and you love not hating your partner, get one.

Does a pmean my marriage destined for failure?

Nope.  Not even a little.  People get divorced for all kinds of reasons, but having signed a prenup isn’t one of them.  Having the tough what-if conversations before you take your vows will help to strengthen the bonds between you and your partner, not weaken them.

Do a lot of people get prenups?

They do and that number is growing.  The younger generations, Millennials and especially Gen Zers, are seeking prenups at a higher rate than past generations.  That trend is likely to continue as our society normalizes couples talking about the big issues before taking the big leap.

How do I get a prenup?

This is going to sound strange, but call a divorce lawyer in your county.  Divorce lawyers have intimate knowledge of the divorce system and can draft you a prenup that will cover all of the “what-ifs.”

It is possible to create a prenup without an attorney.  However, it is not recommended.  Prenups are great, but only if a court will enforce them.  If you write a prenup on your own and miss a step, you risk it being invalid. 

How long will it take to get a prenup and how much does it cost?

Plan on a couple of months, minimum.  You are going to have tough conversations with your partner.  It can take more than a few chats to negotiate a plan.  Once you have a plan, you’ll need the attorney to draft the agreement, you need to review, there may be revisions, etc.  It can take a while.

The cost will vary depending on where you live and how complicated you make your prenup.  A range could be anywhere from $500 to $2000 or more.

Having a prenup can do wonders, from making sure you and your significant other are on the same page about your future before you say your vows to protecting you if the worst happens and your marriage ends. Would you get a prenup? Let us know in the comments!

All of the information in this article is for informational purposes only. Merely reading this article does not create an attorney-client relationship. Nothing stated in this article is intended to be relied upon as legal advice.