Legally Speaking: What Every Guy Should Know About Prenups

Legally Speaking: What Every Guy Should Know About Prenups
Tennessee attorney Scott Kimberly breaks down the vitals on what could potentially be one of the most important documents in a man's life: the prenuptial agreement. Learn what they are, who they're for, and who they're not.

The mission at Primer is to “dig deep into issues guys in their 20’s face like career success and personal wellness.” Unfortunately, a common issue that young men often face, but that few want to talk about, is navigating through courts and the legal system.

The Legally Speaking series addresses a host of legal issues that young men may encounter, including criminal charges, divorce, property division, and child custody.

This article discusses a common issue among young men: marriage. More specifically, the aim of this article is to provide a clear understanding of prenuptial agreements.

It is important to emphasize what this article will address and what areas may not be covered. This article will discuss the basic definition of a prenuptial agreement, what a prenuptial agreement can and cannot do for the parties, and common situations in which young men may benefit from a prenuptial agreement.

A few notable issues that this article will not address include: requirements for a valid prenuptial agreement; how to invalidate or fight enforcement of a prenuptial agreement; and conflicts between a prenuptial agreement and a will. These are important issues, but such issues are outside the scope of this article.

Basic Definition of a Prenuptial Agreement

A prenuptial agreement, often called a “prenup,” is a contract between two people who plan to marry that provides for the disposition of assets in the event that the marriage ends in divorce or death.

Prenuptial agreements can take on several different names, including, but not limited to, premarital agreement, marital asset protection agreement, separate spousal property agreement, and separate property agreement.

Basic Function of a Prenuptial Agreement

The premise of a prenuptial agreement is simple: the document sets forth guidelines or boundaries that bind each spouse should the marriage end in divorce or death. In other words, a prenuptial agreement binds the parties to a certain course of conduct at the end of a marriage.

What a Prenuptial Agreement Can Do

A prenuptial agreement is a very powerful document. Quite simply, a prenuptial agreement is a contract, through which two consenting and fully informed adults can bind themselves to a certain course of conduct.

Here is a non-exhaustive list of what a prenuptial agreement can do for someone contemplating marriage:

  • Protect Separate Property. A prenuptial agreement may provide that certain property previously owned by you (e.g. your car, your boat, your home) will be awarded to you if the marriage ends, no matter how the property may be used during the marriage.
  • Divide Marital Property. A prenuptial agreement may set forth a clear division of marital property, so that there is no dispute as to division if the parties ultimately seek divorce.
  • Assign Pre-Marital Debt. A prenuptial agreement may protect you from liability for pre-marital debt incurred by your spouse.
  • Award Marital Property to Children of the Marriage. Upon your death, a prenuptial agreement may award certain property to your children instead of your surviving spouse. Consider that the surviving spouse can do what she wishes with your property, including give it to her family or other children.
  • Provide for Children from Previous Relationships. A prenuptial agreement may stipulate that certain property be given to your children from a previous relationship upon death or divorce, who may otherwise be overlooked or disfavored by your spouse, instead of that property going to the your spouse or children of the marriage.
  • Protect Family Heirlooms. Upon your death, a prenuptial agreement may ensure that family heirlooms remain in your family by requiring that they be given to a named family member instead of your surviving spouse.
Example: John owns a string of video rental stores, which specialize in VHS films starring Nicolas Cage. John meets Jane, a precocious young woman with a penchant for online gaming. After getting engaged, John learns that Jane has over $18,000 in debt from Candy Crush Saga purchases, along with three liens on her only vehicle. John can use a prenuptial agreement to ensure that, if the marriage ends in divorce, he will be able to both keep his Nicolas Cage kingdom and avoid Jane’s existing debt.

The common thread among the powers of a prenuptial agreement is protection. A prenuptial agreement can protect your interests and goals that you have going into a marriage and ensure that an unsuccessful marriage does not permanently injure you or your family members.

What a Prenuptial Agreement Cannot Do

Prenuptial agreements deal primarily with financial and property rights of the parties. As such, courts view non-financial provisions of such agreements unfavorably.

In general, courts disfavor documents that are either unfair to one party or unrelated to the purpose of prenuptial agreements. Examples of disfavored provisions span from personal obligations (e.g. setting forth which spouse will take out the trash during a marriage) to parental rights (e.g. making specific provisions regarding child custody and child support).

The following is a non-exhaustive list of agreements that are unlikely to be enforced by courts:

  • A provision that governs personal conduct, such as requiring one spouse to maintain a certain weight or to quit smoking.
  • Any provision that encourages illegal activity by either spouse.
  • An agreement to set, limit, or waive child support in the event of separation.
  • A provision that declares custody or parental rights for minor children in the event of separation.
  • An agreement to waive alimony or spousal support (in certain jurisdictions).
  • Any provision that encourages divorce.
Example: John still owns his VHS rental stores. Frustrated by the lack of interest in VHS tapes, and realizing that millennials have no respect for iconic films like Face/Off, John starts an underground casino in his supply room. John wants his fiancée, Jane, to help operate the casino, aptly titled the Cage. Unfortunately, a prenuptial agreement cannot help John bind Jane to this venture, because the law disfavors both illegal gambling and Nicolas Cage films.

When You May Need a Prenuptial Agreement

There are several situations in which young men may benefit from using a prenuptial agreement. Consider the following scenarios:

  • You own significant amounts of property. If you own significant property prior to marriage, it may be in your best interests to clearly identify what will happen to that property in the event of divorce, death, or separation.
  • You or your spouse have minor children from a prior marriage or past relationship. This is one of the most critical reasons to enter into a prenuptial agreement. Consider that, in the event of divorce, your assets could go to your spouse’s children from a prior marriage instead of your own. If the children are yours, you may want your assets to pass to those children instead of your spouse in the event of your death. The possibilities here are numerous.
  • You own an interest in a business. If you own part of a business, that interest, and any growth in the business, may be subject to division in a divorce. If that business interest was acquired prior to marriage, and you believe you are entitled to the full benefit of that interest, a prenuptial agreement can ensure that you maintain all of the benefit of the business.
  • One spouse has (or is about to have) significant debt. In most states, assets and debt acquired during a marriage is presumed marital, which means that one spouse incurring large amounts of debt may make both spouses liable. A prenuptial agreement can identify who should bear that debt if the marriage dissolves.
Example: A young John is building his Nicolas Cage empire. VHS tapes are selling like hotcakes and the world cannot get enough of Captain Corelli’s Mandolin. John now owns three properties, operates three businesses, and, to top it off, cares for his son, Ghost Rider, who was born out of wedlock when John was only nineteen. John may be an ideal candidate for a prenuptial agreement.

This article is too short to cover every situation in which a prenuptial agreement may be advantageous, but the possibilities are vast. You may consider a prenuptial agreement if one spouse is much wealthier than the other, if one spouse has previously been married, if one spouse will be working to support another who is going through college or pursuing an advanced degree, or if one spouse has an ill family member that needs medical care, among other situations.

Prenuptial agreements offer the necessary planning to ensure that young people are protected in any of these situations.

When You May Not Need a Prenuptial Agreement

There are also several situations where young men may not need a prenuptial agreement. In fact, for men in their early to mid-20s, a prenuptial agreement is often unnecessary.

If the point of a prenuptial agreement is protection and planning, ask yourself do I have anything that needs to be protected? If the answer is no, then a prenuptial agreement might not be right for you.

If, at the time of marriage, you don’t have significant property, significant income, a significant inheritance, children from prior relationships, an estate plan, an ownership interest in a business, or plans to pursue a professional degree, among various other things, then a prenuptial agreement may be nothing more than a waste of time.

Further, there are several negative consequences of pursuing a prenuptial agreement. First and foremost, since a prenuptial agreement anticipates divorce or separation, the agreement may sow seeds of distrust or discontent. If one spouse seeks a prenuptial agreement from the other, it may cause significant trust issues in the relationship.

Additionally, any benefits of a prenuptial agreement may be lost if the agreement is later thrown out in court. Prenuptial agreements are invalidated for a variety of reasons. As stated above, this article will not discuss common reasons for invalidating prenuptial agreements; however, the potential for non-enforcement is a serious risk of entering into such an agreement.

Example: A young John is trying to build his Nicolas Cage empire, but, Matchstick Men be damned, no one is buying. John doesn’t own the building, the business has no assets, and John is currently renting a studio apartment whose most valuable item is a pleather beanbag. Jane agrees to marry John, but John is unlikely to benefit from a prenuptial agreement, as he has little, if anything, to protect if the marriage were to fall apart.

Conclusion

A prenuptial agreement is a very powerful document for anyone who is contemplating marriage. It may be difficult to have the conversation about a prenuptial agreement with your future spouse; however, if the two of you decide to use a prenuptial agreement, the powers and protections at your disposal are many.

As always, if you have questions about prenuptial agreements, such as whether a prenuptial agreement is right for you or whether a prenuptial agreement can do what you are wishing, talk to a local attorney who will know applicable state and local laws.

NOTICE: This article is written for informative purposes only. This article is not legal advice and does not create an attorney-client relationship between the author and any reader. Readers are cautioned against relying on the information contained in this article for legal purposes. Always consult with an attorney before taking any legal action as case law and statutes frequently change.

Scott Kimberly owns and operates the Law Office of W. Scott Kimberly in Murfreesboro, Tennessee. His practice currently focuses on criminal defense, family law, and personal injury. Outside of his law practice, Scott enjoys golf, movies, politics, and his beloved LSU Tigers. You can read more about Scott at www.murfreesborolawyer.com.

  • Jason M

    Great article, but I think it would’ve also been valuable to add HOW to broach the subject with your spouse.

    • Hansel

      If she is already your spouse a “pre-nuptial” does not seem to be what you need, as the name suggests it is for prior to your nuptials

      • Jason M

        General term there chief. “Spouse” meant, girlfriend, significant other… Whatever term you assign PRE marriage.

        • Today

          Sorry to say but being snarky doesn’t hide how you’re backtracking and attempting to damage control.

          Also, I’m not aware of any situation where “spouse” ever applies before marriage.

        • Rt1583

          The general term, chief, for the person who is to become your spouse is fiancé.

        • Hansel

          Not even close “chief”. Try learning the meaning of words before using them.

          Spouse:
          “: someone who is married : a husband or wife”

          “a husband or wife, considered in relation to their partner.”

          Just admit you used the wrong wording and move on instead of trying to change the meaning and looking the worse for it.

    • Rt1583

      This guy’s just a lawyer.

      Considering that most women, especially the first timers who are newly engaged, view marriage with a tremendous amount of romanticism, you’re going to have to find somebody with some pretty powerful magic to help you and protect you during that conversation.

      • Scott Kimberly

        I agree that this guy is just a lawyer and I also agree that it may take magic to protect yourself during that conversation. Thanks for the comment, RT.

    • Scott Kimberly

      Jason, thanks for the comment. A section on having “the conversation” was definitely in my preliminary outline, but I tried to keep this article focused on basic issues.

      I’ll be honest, I’m not sure if there is a smooth way to broach that subject. I would assume that “Hey, I know we said forever, but just in case, what do you think about…” rarely goes over well.

  • seizure

    bravo on all the nick cage references. (applause)

    • Rt1583

      I’m trying to figure out if he really, really like Cage and his movies or if he really, really hates Cage and his movies.
      Could go either way.

      • Scott Kimberly

        I’m gonna be honest— I’m still trying to figure that out myself. I know how bad they are, but I still watch them. My wife and I enjoy all of the Nic Cage movies for the absurdity that they are. I just needed an example for the piece and he happened to pop into my mind.

        • Rt1583

          They’re not all bad. Raising Arizona and the National Treasures were pretty good.

  • Matt W

    Spot on: “because the law disfavors both illegal gambling and Nicolas Cage films.” Loved the scenarios!

    • Scott Kimberly

      Thanks for the comment, Matt! I try and add funny scenarios to keep the piece from monotonous legal jargon.

  • CryptoReporter

    I did not get a prenup. I am partial owner of an aerospace biz and I had debts before marriage of approx $10K. Would my wife be able to deduct that debt when we split things up?

  • Michael

    There’s always pros and cons to this subject. Nevertheless, it may seem to protect their rights (or skin) or what not but, marriage is not a contract, it’s a big decision on whether you want your spouse to be with you for the rest of your life. This is not like friends for benefit you know.

  • Anna Cross

    You need to add the “Living Meaner” tag for this article.

    Our daughter wanted a prenup. When we tried to talk her out of it she clammed up. Well, I hope you are never faced with this situation. Get yourself some intelligent information.

    “Why Prenups Are Bad For Your Marital Health.” IVKD Law. http://www.ivkdlaw.com/the-firm/our-articles/prenuptial-agreements-and-lawyering/why-prenups-are-bad-for-your-marital-health/

  • Joe Smith

    How did Heidi Klum create a post-nuptual agreement in which she stipulated that she would NOT support Seal in case of divorce? Seal could have sued for custody of the children and huge child support payments…
    You are saying here that this sort of agreement cannot be part of a prenup. :0

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