There is no such thing as a “standard” prenup – each one is as unique as the couple signing the agreement. However, there are a number of options you should think about in crafting your own prenuptial agreement.
Ownership and Division of Assets
Think about how you want your assets to be divided.
Consider there to be three different pots (regardless of where the money comes from): yours, your partner’s, and a joint point. Figure out what you want in your pot, what you want in your partner’s post, and what should be shared.
Think about specific assets – for instance, your marital home, your business, your retirement account. What happens to these?
Think about how these assets change in value over the marriage. For instance, your retirement account will be worth more 10 years from now. Is the retirement account yours, or shared, or perhaps what existed at the date of marriage is your, and what is accumulated during the marriage belongs to both of you. Or a business can grow, change legal form, be bought out, and so forth.
Perhaps only your joint bank account will be considered marital property and everything else will be considered separate property.
What happens to each of your incomes? Does his income remain his and her income remains hers? Or does income become marital property? What about bonuses – will they be treated any differently?
Note that certain interest cannot be waived in a prenup, such as your social security benefits.
How do you want your debts handled? No one wants to get stuck with credit card debts in another person’s name. Perhaps you even want to deal with the creation of liabilities, to make sure your partner does not start running up gambling debts behind your back.
Find out how much alimony you would be required to pay without a prenup. Find out how this would change as changes to your life occur. Find out how long you would be required to pay alimony. Are you satisfied with this? Do you want to reduce it? Are you willing to be more generous, particularly if it is a short-term marriage?
Would a complete waiver of spousal support stand up in court? In many cases, such a waiver may not, particularly where there is a long-term marriage and the wife has been a long-term homemaker.
Consider survivor benefits and life insurance to protect your spouse, or to provide back up for alimony payments.
Do you want your prenup to help with your estate planning? If so, do you want it to waive any legal requirements for your estate, or perhaps to set certain minimum standards?
General Prenup Terms
Who will stay in the marital residence on separation?
When does your prenup come into effect? The date of separation or date of divorce? Perhaps a lawsuit must be filed.
Consider avoiding court altogether by taking any disputes to mediation or binding arbitration outside of court.
Who will pay attorneys fees if you separate?