Premarital Agreement Checklist

There are many details to think about when you’re planning your wedding; however, a prenuptial agreement (also known as a premarital agreement) shouldn’t be left to the last minute. Here’s a list of issues to think about before you speak to your fiancé and your lawyer regarding a premarital agreement. If often helps to know your own feelings about these issues before decide to talk to your fiancé about them:

Premarital Assets and Debts: You’ll want to make an exhaustive list of your assets and debts that are currently in your name. It’s required for your prenuptial agreement, and it’s also good practice about being up front and straightforward about financial issues with your new marital partner. Below are some questions to think about when thinking about premarital assets and debts:

•Once you’ve made your list, how will you handle premarital assets and debts in the event of a divorce?
oWill the assets and debts remain separate property, meaning that they will go back to the person who accumulated them before the marriage?
oOr will your separate property be inter-mingled with your marital property?

•What if one person’s pre-marital property is used to pay off the other person’s pre-marital debts(i.e. school loans)?
oWill the paying party need to be reimbursed, or is it a gift?

•What if you use premarital property to buy a home you’ll own together?
oWill the paying party need to be reimbursed, or is it a gift?

Marital Property: Marital property describes the assets and debts that you will accumulate together once you are married. Below are some questions to think about regarding marital property:
•How will you handle the income and assets you accumulate together?
oWill they be joint, and 50/50?
oWill you use another arrangement?

Management of Assets and Income: People tend to be either spenders or savers. Given that opposites tend to attract each other, it’s typical for a couple to have very different money styles. That can work out just fine, provided that you each know about the other’s priorities and goals and provided you can work out a way for each person’s needs to be met. For example, one partner might be concerned about retirement savings and future security. The other partner may feel that money is to be enjoyed and spent for things like vacations and luxury vehicles as part of a well-lived life. Can these styles be reconciled? The answer is yes, of course, provided that you have a plan for what will be set aside for retirement and what’s available to use for enjoyment.

Credit and Debt: Have you seen each other’s credit reports? Now might be a good time to have a serious talk about credit scores and priorities with respect to paying off old debt or accumulating new debt. Is it likely that either of you might over-borrow? Or refuse to borrow no matter how much sense it makes to the other person?

Working: What are your views on non-monetary contributions, like raising children or managing the household? Most states recognize these types of contributions during a marriage, but it’s important that you share your attitude, and that you know your fiancé’s attitude about these types of roles in a marriage. What is your expectation about the kinds of jobs and income you will each have?

Do you anticipate both of you continuing to work after having children? Or would one of you stay home? For how long?

Spousal Support and/or Alimony: How do you feel about spousal support? In most states, the rights to claim support go to both the husband and wife. You don’t have to address this in your agreement if you don’t want to, but it makes sense to talk about it. Will there be any limitations on the amount, terms and duration of support? Do you want to make terms about spousal support or alimony that are different than what your state law allows?

Gifts from Families: Sometimes one set of parents or relatives gives a couple a large monetary gift, loan or a home down-payment. It is important to make clear what kind of gift this is. Would the gift from the family be marital or community property, or the property of the spouse whose family gave the money? If it’s a loan, who would be responsible for repaying it, and how and when?

Being clear between yourselves as well as with your own family will help you avoid conflict in the future.

Business ownership: If you or your spouse own a business separately, there are special issues you should consider.

Fault: Fault can be defined as who is to blame for the divorce. Fault can be evidenced by an affair, drug or alcohol abuse, among other things. However, most state laws either won’t consider fault, or barely consider fault, in dividing property or awarding spousal support in a divorce situation. How do you and your fiancé feel about fault? Would it make a difference to you in your property settlement or spousal support if you felt one person contributed more to the breakdown of the marriage than the other person?

Death or Disability: You will want to have a comprehensive estate plan in place soon after your wedding, particularly if you have children from previous relationships, so that your assets and debts are handled the way you intend if you were to pass away.

Do either of you have children already, or people who’d inherit from you?
Do you have life insurance?
Who will you name as beneficiary on your retirement plans, IRA’s, and survivor annuity benefits on pension plans?
Will the surviving spouse be able to support the same lifestyle in the event of your death?
o

General:

In order to begin drafting a premarital agreement, you’ll each need a complete list of your current assets, debts and income, as well as any health issues you might have.

You may also want to consider including a clause that says you’ll mediate any issues that come up that you can’t resolve on your own or that you will seek professional marriage counseling before considering divorce. Also, another helpful clause may state that the two of you will choose to mediate in the event of a divorce, or use a collaborative law or alternative dispute resolution press rather than litigation.