Premarital (Prenuptial) Agreement FAQ

What is it?

An agreement signed before marriage, covering what happens in the event of divorce, or death, or both. The agreement may be called:

  • Prenuptial agreement
  • Premarital agreement, or
  • Simply “prenup”

Why is a prenup a good idea?

Because working out the prenup requires open, honest discussion of money and financial issues before marriage. Differences about money are a major cause of marital problem. For many couples, the experience of talking about and resolving financial issues for the prenup acts as an inoculation against divorce. Additionally, it allows the couple to make a private agreement about their finances, rather than be subject to the divorce or probate law of the state.

What can be covered in a prenup?

The main topic is assets — those each has before the marriage and assets accumulated during the marriage. It can do any of the following:

  • Ensure each keeps his/her premarital assets
  • Designate premarital or other debt in one name with the person who incurred it
  • Protect a spouse who gives up career to benefit the family
  • Keeps family businesses and heirlooms in the family
  • Protect rights of prior-born children
  • Determine or limit alimony

My hope is that only death will end our marriage, but my fear is that we may divorce after a few years. What can I do?

A prenup with a built-in “sunset” provision might be the answer. That means that the prenup only is in effect for a certain number of years (for example 10 years). Another approach is for the prenup could provide for a gradual sharing of assets, such as no sharing of assets if there is a divorce in the first 4 years, but a 10% share after 4 years, increasing to 50% after 12 years.

How are prenups worked out?

There are 3 methods for negotiating the specific terms in a premarital agreement:

  1. Mediation – The engaged couple work with a trained neutral person who facilitates their working out the agreement. The mediator then prepares a draft agreement, and sends it to each party. Each then reviews the agreement with her/his lawyer. Agreed-on revisions are made by mediator and agreement is signed.
  2. Collaborative Law – Each party hires a lawyer trained in Collaborative Law (see list at www.CollaborativeLawNH.org). The lawyers and the couple have a 4-way meeting (or meetings, if required) and work out the terms of the agreement. The agreement is drafted by one of the lawyers, reviewed by all, and after agreed-on revisions, is signed by all.
  3. Traditional Representation РThe lawyer for the person with more assets drafts the agreement and sends it to the other party’s lawyer. Any changes are negotiated between the lawyers and the agreement is signed.

Both Mediation and Collaborative Law are decision-making techniques that are ideal for parties who are planning a marriage. The advantage of these techniques is that the engaged couple are actively involved in the negotiation. They speak directly to each other about needs and concerns.