What Should You Consider When Drafting a Premarital Agreement?  

Creating a prenuptial agreement is a smart step toward building a strong foundation for your marriage. A prenup fosters trust, transparency, and a clear understanding of your financial future. But let’s face it—drafting one can feel overwhelming. What should be included? What can’t be? How do you make sure it’s legal in a divorce? These questions can feel stressful and even discourage some couples. Don’t worry—we’re here to help. At Mahoney Richmond Thurston, PLLC, we’ve guided countless couples through the process, creating fair agreements tailored to their needs. This post will cover the key elements to consider when drafting a prenup.

Things to Consider in Your Prenup

1. Full Financial Disclosure  

Transparency is the cornerstone of any fair and enforceable prenuptial agreement. Without a full and honest disclosure of each party’s financial situation, the agreement may later be challenged or even deemed invalid. Both parties must lay all their financial cards on the table, including assets, income, liabilities, and expenses. By attaching a detailed schedule of financial information to the prenup, you create a clear picture of each person’s financial standing at the time of marriage. This ensures fairness and prevents misunderstandings or disputes down the line.

2. Division of Income  

One of the most critical elements of a prenup is determining how income will be treated during the marriage. Will it be shared, kept separate, or split in a specific ratio? Clarity on these matters can prevent significant stress and confusion in the future. Additionally, specifying who is responsible for regular expenses such as rent, groceries, and utilities helps establish a balanced financial dynamic within the marriage. By addressing these topics in a prenup, couples can avoid misunderstandings and create a clear framework for financial management.

3. Debt Management

Marriages often come with financial surprises, especially when it comes to debt. Including stipulations about debt management in your prenup can help you avoid this altogether. Debt terms clarify who is responsible for debts incurred before and during the marriage, such as student loans, business liabilities, credit card debts, or other financial obligations. Without these specifications, you could find yourself unexpectedly liable for your partner’s debts after marriage. A well-drafted prenup ensures that debts are properly allocated, protecting both parties from potential financial burdens and reducing the chances of conflict over shared financial responsibilities.

4. Protection of Family Inheritances  

Family heirlooms and assets intended for future generations can be a sensitive topic in a marriage. A prenup allows you to safeguard these items by clearly outlining terms to ensure they remain in your control. Whether it’s a family home, jewelry, or a financial inheritance, these assets often hold deep sentimental or financial value. Without proper protection in a prenup, these assets may unintentionally become marital property and subject to division in the event of a divorce. Including provisions for inheritances helps preserve the integrity of these family treasures and ensures they remain within the family as intended.

5. Alimony or Spousal Support  

Determining whether alimony (spousal support) will be paid and under what conditions is an important consideration for a prenup. By establishing the amount, duration, or even waiving alimony, couples have more control over what happens if the marriage ends. However, it’s essential to keep in mind that courts may not enforce terms that leave one spouse in extreme financial hardship. Including clear, balanced terms for alimony in your prenup can save both parties time, money, and emotional strain in the future by minimizing the need for contentious court battles.

6. Business Interests  

If one or both parties own a business, including stipulations about business interests in a prenup is crucial for protecting that enterprise. A prenup can ensure that the business remains separate property or outline ownership percentages and profit-sharing arrangements, both during the marriage and after a potential divorce. Without these protections, a spouse could claim a share of the business or its future earnings, potentially leading to financial disputes or even jeopardizing the business. Addressing business interests in advance ensures that the business owner retains control and avoids costly disruptions.

7. Provisions for Property Division Upon Separation  

Dividing property during a divorce can be one of the most contentious aspects of the process. A prenup can eliminate ambiguity by including clear terms for how jointly owned, inherited, or individually titled assets will be divided. For example, you can specify how to handle major assets like real estate, vehicles, or savings accounts. By addressing these matters upfront, couples can significantly reduce stress and legal battles in the event of separation. Clear provisions for property division ensure a smoother and more amicable process while protecting the financial interests of both parties.

8. Confidentiality Clauses  

In today’s interconnected world, privacy is more important than ever. Adding confidentiality clauses to a prenup ensures that the details of your agreement and your personal and financial information remain private. This can be particularly important for high-profile individuals, business owners, or anyone concerned about the public disclosure of sensitive matters. A confidentiality clause protects both parties from unnecessary exposure and keeps your financial arrangements from prying eyes. Including these provisions offers peace of mind and helps maintain discretion in personal and financial matters.

What Not to Include in Your Prenup

While prenups provide a great deal of flexibility in tailoring the terms of a marriage, there are certain aspects that cannot or should not be included in these agreements. Understanding these limitations is crucial to ensure the document remains valid and enforceable.

• Child Custody and Support

Family courts always prioritize the child’s best interests above all else. This means that custody and support arrangements cannot be predetermined in a prenuptial agreement. These matters must be decided at the time of a divorce or separation based on the circumstances and needs of the child at that moment. Attempting to address these issues in a prenup will render those provisions void.

• Illegal or Unfair Terms

Any provisions in a prenup that involve illegal activities or are deemed grossly unfair by the court will invalidate the agreement. For example, clauses that promote tax evasion, require illegal actions, or impose unreasonable financial obligations on one party may be struck down. A prenup must adhere to the law and maintain fairness to be upheld.

• Lifestyle Clauses

Some couples try to include lifestyle clauses in their prenuptial agreements, such as terms about infidelity, personal behavior, or even household responsibilities. While these clauses may address emotional concerns or moral commitments, they are often unenforceable in court. Such provisions can also detract from the agreement’s primary purpose: to protect financial interests and clarify property rights in the event of a divorce. Keeping the prenup focused on legally valid and enforceable matters is better.

It’s Time to Build a Stronger Future Together

Drafting a prenuptial agreement isn’t about planning for failure—it’s about laying the groundwork for a successful marriage built on trust, transparency, and shared understanding. By focusing on financial clarity and mutual respect, a prenup can provide peace of mind to both partners.

Whether you’re ready to draft your prenup or need guidance on where to begin, Mahoney Richmond Thurston, PLLC, is here. Our experienced attorneys can help you navigate the process and create an agreement that reflects your unique needs and priorities. Contact us today to schedule a consultation and build a stronger future together.