Prenuptial Agreement Checklist
Drafting a prenuptial agreement might sound like a headache. There are so many considerations that it’s easy to feel lost and consider not going through with a prenup at all. However, we believe in empowering the public to make sensible legal decisions for themselves. Below, Surasky Law provides a checklist to keep you on track as you plan and negotiate a prenuptial agreement. Contact us at any time if you need assistance.
Prenuptial Agreement Checklist: First Steps
1. Discuss a Prenuptial Agreement with Your Partner
The last thing you want to do is spring a drafted prenuptial agreement on your partner the night before the wedding. We recommend raising the issue at least six months ahead of time. That provides sufficient time to negotiate and draft an air-tight agreement.
2. Hire Your Own Lawyer
Each partner should have their own attorney. You want to show a court that each partner entered the agreement voluntarily and received their own legal advice. If you shared a lawyer, then questions might arise about whether the lawyer was really working for only one partner.
3. Create a List of Your Premarital Assets and Debts
For a prenuptial agreement to be valid, you need to make a full disclosure of your finances. Remember to list any type of asset, such as:
Savings or checking accounts
You also need to draft a list of your debts, such as:
Loans where you acted as cosigner
Assets and debts can fluctuate, so always maintain accurate records.
4. Gather Other Documents
Other documents which are necessary for drafting a prenup include copies of:
Life insurance policies
You will want to refer to them while negotiating a prenuptial agreement. Also, based on your prenup, you might need to revise any of the above, such as your will.
Prenuptial Agreement Checklist: Issues to Discuss
1. Marital versus Separate Property
Under the law, property either spouse acquires while married is considered “marital” and will need to be divided in the event of divorce. Marital property includes even wages one spouse earns or an asset titled in only one spouse’s name. What really matters is when you acquired it. If you were married, then it’s a marital asset.
However, you can use a prenuptial agreement to characterize some property as separate, even if you acquire it while married. Some common examples include:
2. Division of Marital Property & Debts
A prenuptial agreement can determine how to divide marital property if you divorce. You have many options, including a 50/50 split or some other arrangement.
Many couples also focus on how to divide debts, like student loan debt. You might decide the person who took out the debt will leave a marriage with it.
3. Managing Income & Expenses
Many disputes erupt over how a couple manages money. You can include instructions in a prenuptial agreement for how you and your spouse will pay bills and make purchases while married. Some questions to get you started include:
Who is responsible for which bills?
Will you deposit some or all of your paycheck into a joint account?
Will you keep separate accounts? Does either spouse have access to that information?
How much will you contribute to retirement?
Who will save for a down payment on a home (if you don’t yet own one)?
Does either spouse need permission before making big purchases, like appliances?
4. Spousal Maintenance
Many prenups also make provisions for spousal maintenance, which is money one spouse pays to the other following separation and divorce. Consider the following:
Will either spouse waive the right to spousal maintenance?
Are there limits on the duration or amount of spousal maintenance?
Will one spouse pay for certain things, such as an education for the other?
5. Family Gifts
A gift to both spouses is marital property and is normally divided in a South Carolina divorce. You can use the prenuptial agreement to decide how to divide it.
Taxes can also be confusing when married, because you have the option of filing jointly or separately. Many questions crop up and you should address the most important ones now:
How will you file taxes (jointly or separately)?
Does either partner have pre-existing unpaid taxes? Who is responsible for paying for it?
If you file jointly, who will pay the taxes? Will you deposit money into a joint account for this purpose?
What happens to a joint refund? Do you save it? Does either spouse have permission to spend it?
7. Educational Expenses
You should consider how to split educational costs, which can include:
Either spouse going to college or technical school for an education
Your children going to college
You should decide how to pay for these expenses. Will you divide them equally? Some other percentage?
You aren’t required to support adult children in South Carolina, but you might choose to. Discuss this with an attorney.
8. Business Interests
If either spouse owns a business, you need to discuss in depth how the business will be managed while you are married and what happens in the event of divorce:
Will the business be considered separate or marital property?
Will business profits be considered marital property?
Does either spouse have the right to review the books while married or during divorce?
Can family income be spent on the business? How much and for what?
What can business income be spent on? Family expenses?
You can also use a prenup to plan for death. This is an important consideration if you have children from a previous marriage. For example, you might be marrying again in your 50s and have 3 children who you have named in your will. If you die, your spouse has a right to a certain percentage of your estate, called an elective share. This elective share can disrupt your estate plan because the right exists even if you cut out your spouse from your will. Some questions include:
Will either spouse waive their elective share right?
Does the prenuptial agreement end upon the death of one spouse?
Who will inherit the home if one spouse dies?