What Should be Included in a Prenup?

By Ehsan Ali and Alnoor Maherali

Prenups are an often awkward topic for couples who are about to get married or move in together. It’s natural to not want to think about the possibility of divorce before marrying, but it can be so much worse to work out the details after you decide to separate. Having the conversation before you get married allows each person to better (and perhaps more fairly) determine rights and responsibilities regarding property and spousal support if the marriage were to end. And if you decide to use mediation for your prenup, the conversation can be even easier. 

Many people believe that a prenup is only required if one or both parties enter the marriage with a lot of money or property. And in some cases there can be pressure from one or both sets of parents to protect family wealth. However, any couple, no matter how much or how little money they have, can benefit from a prenup. And prenups don’t just have to be about protecting or dividing assets. These days, they have many practical uses that reflect current social norms and realities. So what should (or shouldn’t) be included in a prenup?

Traditionally, prenups included property, debts, spousal support, and inheritances. These days, a prenup can spell out financial roles and responsibilities during a marriage as well. This can include who would pay for which expenses and whether purchases above a certain value require consultation first. And they can address newer issues, such as a greater comfort with separate finances, higher amounts of student debt, pet ownership, social media behaviour, financial consequences if a spouse is caught cheating, and fertility matters. What can not be included are decisions about child custody, visitation rights, and support payments when children are involved or hoped for. Courts prefer to make those decisions at the time of the divorce in the best interests of the kid(s). Some of the issues that can be included are discussed below:

Property - Property in a prenup can be either Separate or Shared. Separate property tends to be items that are owned by one person prior to the marriage and would not be divided if a breakup were to occur. Shared property is property the couple either purchased together or agree to consider as belonging to both parties. These can be high or low value items but if they are important to one or both parties they should be discussed in the prenup.

Debts - People getting married today tend to have much higher student and credit-card debt than before. A recent Fidelity Investments report, for example, found that millennials in 2020 had an average loan balance of $52,000. The prenup can allow that certain debts should be paid for with marital property or it can determine that pre-marriage debt stays with that spouse.

Spousal Support - Depending on financials at the time of marriage, future earning potential, and expectations for periods of unemployment due to education, childcare, and other reasons, it can be helpful to have a discussion about if and what kind of support one person may require from the other during or after a divorce. 

Social Media - A new inclusion in prenups is a “goodwill clause” that aims to prevent a couple from making negative social media posts about each other during or after the marriage.

Pets - Although child custody cannot be included in prenup, the law has historically viewed pets as “personal property.” Thus your pets can be included in the prenup. As with children, and absent a valid prenuptial agreement, divorce courts could make a determination of who the “better” pet parent is. If you are especially attached to your pet and can’t live without them, you should consider including them in the prenup.

Ultimately, a couple can include as many or as few issues as they want and can aim to be as firm or as flexible as possible. This is where mediation helps. Many prenup discussions tend to get derailed when one side’s lawyer drafts an agreement for the other side to sign which is received with shock and feelings of hurt. When you work with a mediator, like Venn Mediation, we have a discussion first and aim to understand what is important to both of you. And then we help you to draft an agreement in language you can understand that includes those issues.

The prenup discussion can be scary but it doesn’t have to end badly. In fact, going through the process can actually strengthen a relationship as it forces the couple to discuss important cohabitation matters that they will undoubtedly have to confront once they’re married. And if you're still on the fence about getting a prenup, a couples mediator or marriage counselor can talk through any issues. We know one or two good ones.

If you or someone you know is about to get married, contact Venn Mediation to learn more about mediated prenups. And if you are already married, you may benefit from a ‘postnup’ or couples mediation. We are based in New York but are very experienced in online mediation and can work with people anywhere. We offer a free 30-minute consultation where we can walk you through the process and help you figure out whether it is right for you. Mediation is a cheaper and more collaborative process that can make difficult conversations easier. We would love to help.

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