Amid all the excitement of getting engaged and planning a wedding, the last thing most couples want to think about is how to divide their property in a divorce.
Prenups can make you feel uncomfortable and like you’re planning for failure but they offer important protection — especially in certain scenarios.
Here’s a look at the key factors divorce attorneys recommend you consider when deciding for or against one.
What Is a Prenup?
A prenup is a legally binding agreement between an engaged couple that outlines how their assets will be split up if they get divorced.
“Most couples who seek a prenup are interested in keeping each spouse’s income/property and debt/liabilities separate during the course of the marriage. Couples also commonly want to dictate alimony (or spousal support) in the event of a separation,” according to Shaolaine Loving, principal attorney at Loving Lawyer Ltd.
“Another reason couples may seek prenups is to include lifestyle clauses, such as provisions that limit spousal support in the event one spouse commits adultery,” she says.
How High Is the Risk of Divorce?
In 2022, 9.5% of the 268,563 Americans surveyed by the United States Census Bureau said their marital status was “divorced.”
Further, Americans got married at a rate of 6.0 per 1,000 people and divorced at a rate of 2.5 per 1,000 people, according to 2021 data from the Centers for Disease Control and Prevention.
Looking back over the past 23 years, marriage rates in the U.S. have always been markedly higher than divorce rates, but 600,000 to 1 million divorces still happen each year.
[READ: States With the Highest Divorce Rates in America]
What Happens if You Don’t Have a Prenup?
If you don’t have a prenup and end up going through a divorce, the assets you’ve accumulated during your marriage will be divided according to the general laws in your state.
Nine U.S. states currently have community property laws: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin.
“In community property states, both spouses are equally entitled to any income a spouse makes during the marriage or any property that either spouse acquires during the marriage. A spouse that has put more effort into acquiring certain income or assets may feel cheated out of 50% of the income or asset that the court would otherwise award their spouse if they were to divorce without a prenup,” Loving says.
In the other 41 states, judges are in charge of equitably dividing up a couple’s assets and earnings in a way they determine is fair, although not necessarily equal. Both can involve lengthy court cases and outcomes that fail to satisfy either party.
[READ: Hidden Costs of Divorce: Learn How to Prepare for Them]
Situations in Which a Prenup Highly Recommended
A prenup will play a more critical role in certain situations.
“Every couple can benefit from a well-drafted prenuptial agreement. However, there are specific circumstances when a prenuptial agreement is even more important,” Dorik Goikhman, attorney, mediator and founder of Off the Record Mediation Services LLC, says.
“Any person with substantial assets entering into marriage should consider a prenup to protect their separate assets. Prenups should also be used by people with small businesses or who are partners in any business,” Goikhman says.
Todd Huettner, president of Denver Divorce Professionals, adds that you should also consider a prenup if:
— Either spouse has children from a prior relationship.
— Either party has the possibility of a future inheritance.
— A couple has a specific desire to control their own lives and avoid court and the costs of any future separation.
— Either party has significant debts prior to the relationship.
When Prenups Are Less Critical
While less critical in some situations, divorce experts still recommend considering prenups for a few reasons.
“A prenup is less important if the parties do not have substantial assets, and/or do not wish to limit or waive spousal support in the event of a divorce or separation,” Goikhman says. “Even in these circumstances, it’s still a good idea to get a prenup to fully identify and define the goals and wishes of the parties.”
Prenups may also end up being helpful in an unexpected way, according to Huettner.
“In my opinion, the biggest benefit of a prenup comes from completing the process of creating the prenup. Very few couples have difficult conversations they really should have before they get married, which leads to more problems later,” Huettner says.
“Having these uncomfortable conversations increases trust between the future spouses and improves communication that I believe leads to more successful relationships and fewer divorces, which is a bit counterintuitive,” he adds.
Should You Get a Prenup?
The decision to get a prenup is one that each couple will have to make together. On one hand, it can feel uncomfortable and like you’re planning to fail. On the other, it can be a wise step to ensure your interests are protected — especially if you have children from another marriage, significant assets or inheritances on the horizon.
If you have any doubts or questions, it can be wise to speak with an attorney or financial advisor about your specific situation.
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Should You Get a Prenup? originally appeared on usnews.com
Update 06/16/23: This story was published at an earlier date and has been updated with new information.
