Here's Everything You Ever Wanted To Know About Prenups (But Were Afraid To Ask)

Here's Everything You Ever Wanted To Know About Prenups (But Were Afraid To Ask)
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Shutterstock

Prenups: They're not just for celebrities anymore. In fact, more of your engaged friends may be getting them than they admit. Prenuptial agreements are more popular than ever, and millennials appear to be driving the trend: In a 2013 survey by the American Academy of Matrimonial Lawyers, 63% of divorce attorneys say they've seen an uptick in prenups.

"Historically, most people that were getting prenups were people with substantial wealth or family money, or people who were getting married for the second time and wanted to make sure their assets were protected for the kids," Regina DeMeo, a Washington, D.C., divorce attorney, told Mic.  

"Definitely since the Great Recession around 2009 there has been a spike in prenups overall, but the big surprise is the gain in use among the millennials, who often are marrying for the first time and may not have much."

But despite their growing popularity, there's still a stigma around prenups. Many people think prenups aren't romantic, or they're exclusively used by wealthy people trying to protect their assets against shallow gold diggers. Unfortunately, that fear of judgment discourages couples who've signed prenups from speaking up about what they are and how they actually work. 

In the spirit of clearing the air, Mic spoke with three prenup experts to find out the truth about prenups — because you can't decide it's right for you without understanding what it actually is first. 

What is a prenup, and how do you get one?

Source: Giphy
Source: Giphy

Think of a prenup as an insurance policy on your marriage that you get to write yourself. At its core, it's a financial agreement between two parties. (Prenups can't discuss custody of any future children, for example.)

"A prenup can be as simple as, 'my stuff before we were married is still my stuff, and your stuff before we were married is still your stuff," Sandy Arons, a certified divorce finance analyst, told Mic. "Not only that, but it can say, 'if our marriage only lasts two years you get nothing. But if we remain married five years, you get more.'"

It's important to take into account that a prenup isn't foolproof. While all states recognize prenups in theory, in practice each state has different requirements for a prenup to hold up in court, which is why it's important to follow the proper procedure if you are going to get one. 

The first step is having an open financial discussion with your partner and deciding what you want your finances to look like before meeting with an attorney. Once that delightful conversation is over, you and your partner both need independent lawyers so there's no conflict of interest.

"The laws do differ from state to state, but generally we all want to make sure there is 1. full disclosure of the finances; 2. ample time to review and negotiate; and 3. the opportunity to discuss with your own attorney," DeMeo said. That means you can't sign a prenup minutes before walking down the aisle. 

Recently, some couples have gotten more complicated with their prenups, with celebrities like Jessica Biel and Justin Timberlake reportedly including "lifestyle clauses" in their contracts that specify how the marriage will work. (Some lifestyle clauses even include requirements as to how many times per week the couple will have sex.) But those clauses rarely hold up in court. 

The most common reasons people get prenups, and how to know if it's right for you

Source: Lessons from Disney/Tumblr
Source: Lessons from Disney/Tumblr

"The reason why people sign prenups is because they want to determine how financial issues are going to be resolved in the event they get divorced, instead of having the court determine the issues according to the law," Robert Wallack, a celebrity divorce attorney, told Mic. "So we call it an 'opt-out agreement,' meaning that they're choosing to opt out of having the court decide according to the laws of whichever state they're in."

There are lots of reasons why a couple may want to "opt out." Now that the double-income household is more standard, old alimony rules feel old-fashioned for many couples. If one partner has a family business, for instance, or an independent retirement account or an inheritance, they may want to make sure that's off the table as well. 

A prenup can also change how assets are divided. A couple may be OK with splitting things 50/50, but if one partner is going to stay at home with kids, they might want more retirement savings while the other partner gets the more expensive car. 

There are some new reasons driving millennials to get prenups as well: lack of funds, and potential future funds. Lack of funds are often caused by student loan debt — and people are understandably cautious about getting tied to thousands of dollars in debt. The other motivation is to insure your potential earnings are protected in the future. 

"In the last six years, there's been a real trend upwards for these millennials to get a prenup even if they don't have money," DeMeo said. "The potential of having something makes them want a prenup to protect what they could make during the marriage. People who are writers, they may have never once published a book, but if they do one day they don't want to share their royalties in the case of a divorce." That's why DeMeo recommends prenups for any aspiring professional, though not all professionals agree. 

Why talking about a prenup could actually be good for your relationship

Source: Giphy
Source: Giphy

While the question of whether you should get a prenup largely depends on the couple, there's one wrong answer: Not getting one because you don't want to go through the awkwardness of talking about it with your partner. 

"Research has shown that people would rather talk about their most intimate secrets than talk about money," Arons said. "More people get divorced over fights about money than any other reason." 

Most experts told Mic the biggest mistake a couple can make is not talking about financial issues before a prenup is even considered. Don't consider the conversation an interview, just bring it up during a walk in the park. Find out how your partner's family handled money growing up, and how you would handle your own money as a couple.

"If the conversation is done properly, you've already been talking about financial issues for six months, so the prenup is not like hitting you in the face with a frying pan," Arons said. 

"Maybe the prenup discussion leads to the conclusion that they don't want the prenup, but at least they've had the discussion," DeMeo said. "When someone says, 'My fiance's going to freak out,' that's always a red flag."

The bottom line is that although prenups get a bad rap, there's evidence to suggest that for some couples, they might be a step in the right direction toward a happily ever after. In fact, some experts have suggested that getting a prenup might increase the likelihood that your marriage will be successful.

"Creating a prenup can initiate conversations with your fiancé that will set the stage for open communication about finances through all your years together," Jeff Landers, a matrimonial finance expert, wrote in Forbes. "Considering how often money is cited as a cause of marital strife, this puts you way ahead of the game!" 

In short, talking to your partner about getting a prenup isn't a red flag so much as it's about having an open and honest dialogue with your partner about money — and considering you've already make the decision to spend the rest of your life with this person, having that conversation shouldn't be such a difficult step to take.