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What is a Prenup and What Do I Include in It?

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No one walks down the aisle imagining one day they will be racing to divorce court. Nevertheless, a high percentage of marriages end in divorce. Savvy couples certainly contemplate that one day their marriage might end, and they want to plan for what will happen if that day should, unfortunately, come to pass.

Prenups are Contracts

In a divorce, a court must untangle a couple’s finances, which includes dividing marital assets and debts, as well as deciding whether one spouse will pay the other alimony, called “spousal maintenance.” However, you don’t need to leave this up to the judge. Instead, before getting married, you can decide what will happen and include these agreements in your prenuptial agreement.

Prenuptial agreements also can identify what will happen in the event of death. For example, a surviving spouse is entitled to a share of the estate, regardless of what is stated in the will. This “elective share” will depend on the length of your marriage and can be 5-50% of your estate. If a spouse wants to give up their elective share, they can do so in a prenuptial agreement.

What to Avoid Including in a Prenuptial Agreement

You can’t decide everything in a prenup, no matter how well drafted it is. For example, you can’t decide child custody or child support. Colorado judges make decisions about children according to what is in the child’s best interest, and they will completely ignore any prenuptial provision that tries to decide these issues.

You also shouldn’t include any provisions that are unconscionable or against public policy. For example, you shouldn’t include a provision that penalizes a spouse for initiating a separation or divorce, which is likely void.

What to Include in Your Prenup

Most prenuptial agreements deal with the following:

  • How marital assets will be divided. Marital assets are assets you acquired while married, not assets you brought into your marriage.
  • How your marital debts will be divided. Like marital assets, these are debts you incurred while married.
  • Whether one spouse will pay alimony to the other.

To be legal, your prenuptial agreement must meet the following requirements:

  • The agreement must be in writing.
  • Both spouses must sign the agreement voluntarily.
  • Both spouses must make full disclosure of their assets and liabilities before signing the agreement.
  • Both spouses should retain their own attorneys to review the prenuptial agreement.

Additionally, make sure to sign the prenuptial agreement at an appropriate time””neither too close to the wedding nor too soon before you walk down the aisle.

Deciding Whether to Get a Prenuptial Agreement

Prenuptial agreements are not for everybody. For example, your future spouse might be opposed to signing one. Unless you want to call off the marriage, you might need to forego a prenuptial agreement and, in any event, should not pressure your spouse to sign one.

Also, consider that you can sign a “postnuptial” agreement after you get married. This postnup can include all of the information that you would include in a prenuptial agreement. The only difference is that you sign it after getting married.

Nevertheless, prenuptial agreements sometimes make sense. For example, you might be embarking on a second marriage and already have children. In the event of your death, you want all of your assets to go to your children from your first marriage. In this situation, your second spouse can waive their elective share if you die before they do.

Contact a Denver Divorce Lawyer Today

Prenuptial agreements have many wrinkles to them, and couples should carefully consider whether to sign one and what to include in it. To analyze whether a prenuptial agreement is right for you, speak with a Denver prenuptial agreement lawyer at Divorce Matters. To schedule your consultation, call 720-408-7469.