Do you view pre-nups as defeatist or responsible? Family law attorney Kristin M. Capalbo has key questions to determine whether a pre-nup makes sense for your upcoming marriage.

If you get a prenup, are you setting your marriage up for failure or just being responsible? The answer largely depends on whom you ask. Some people argue if you’re vowing to stay together until “death do you part,” it’s hypocritical to have an exit strategy in place before your marriage even begins. Others think it’s irresponsible to enter into the financial partnership of marriage without a prenup in place.

Here are three questions to help you decide whether a prenup is right for you.

  1. What’s a prenup, anyway? Prenuptial or premarital agreements are entered into prior to your marriage, and typically address how assets and liabilities (acquired both before and during the marriage) will be divided in the event you get divorced. Prenups also often address the amount and duration of spousal support.
  1. How will it be enforced? The law governing prenups varies from state to state, so it’s important to speak to a local attorney. Here’s what to discuss:

         – Representation: Are we required to have an attorney write up the agreement? Can we use the same attorney? In some states, you and your future spouse must each be represented by your own separate attorney in order for your prenup to be considered enforceable. Since you may be planning a wedding while simultaneously negotiating a prenup, make sure you choose an attorney who is mindful of protecting your interests while not creating an adversarial relationship with your fiancé.

         – Timing: Some states require a prenup be signed well in advance of your wedding. Why? You don’t want your future husband or wife arguing that they felt forced or coerced because the wedding invites had all been mailed out, the venue was booked, and the vendors had all been paid. If you think you need a prenup, don’t wait until the last minute to speak to an attorney (and, ultimately, your future spouse).

         – Fairness: Some states may require the terms of the prenup be fair at the time you sign; others at the time of the divorce. Still others may not require it be fair at all, so long as both parties entered into it    freely, voluntarily, and with the advice of their own attorney. It’s important you find out what the law says about fairness in your state.

Full and fair disclosure: Most states require that you and your future spouse completely disclose your assets, debts, and income so you’re both able to make an educated decision. This information is often attached as a schedule or addendum to the agreement.

  1. What are the benefits of having one?

         – It will start important conversations around money: According to Lisa L. Payne, Kim Olver, and Deborah Roth on the Huffington Post, a “lack of compatibility in the financial arena” can be one of the leading causes of divorce today. By entering into a prenup, you lay your cards on the table before your financial partnership begins. You’re not only disclosing your net worth (or lack thereof), but also discussing your joint expectations during the marriage and in the event of a divorce. Do you plan to combine your income into a joint account or keep your paychecks separate?   Do you want your retirement funds to stay your own, or are your earnings and savings during the marriage going toward a collective pot? Are you a spender or a saver? Do you believe in paying off credit cards monthly or do you typically pay your balances off over time? By having these honest and difficult conversations now, you may avoid problems that could lead to divorce in the future.

         You’ll cover children and former spouses: If you have a child or children from a prior relationship or if you’ve been married before and have obligations to a former spouse, make sure that certain income or assets, even those earned or acquired during your marriage, are protected for your children and your ex.

You may save money on legal fees in the event of a divorce: By working things out now, you may avoid a costly divorce battle in the future.

Kristin M. Capalbo is a family law attorney based in New Jersey.

This post is not legal advice and does not create a confidential attorney-client relationship. It is being offered for informational purposes only. For personalized advice, consult a family law attorney in your area.

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