One of our specialties is working with engaged couples. It’s exciting to think about a future together filled with hope and possibilities. Newly engaged couples often prioritize wedding planning above other crucial conversations like your future and finances. That said, one topic that we commonly address is how to talk about a prenuptial agreement (or prenup). For some engaged couples, a prenup may not be necessary; for others, it’s an important topic to address. Prenups can be a sensitive topic for many couples. However, prenuptial agreements can also provide important protections and peace of mind.
We’ve partnered with Kyle LeBlanc, a North Carolina Board Certified Specialist in Family Law, and a partner at Hamilton Stephens Steele + Martin, PLLC, who practices family law in Charlotte and surrounding counties. Kyle specializes in prenuptial agreements and has plenty of wisdom to share. In this interview, Kyle talks with Connect Couples therapist Dr. Faith Drew about couples’ most common questions and concerns regarding prenups. Whether you’re considering a prenup for your marriage or want to learn more about this legal tool, this interview will provide valuable insights and information.
Please note this is not legal advice. For legal advice, we recommend contacting a family law attorney to discuss your situation.
What is a prenuptial agreement?
K: Prenuptial agreements, or prenups, are legal agreements that couples enter into before marriage to protect their assets and outline how property and finances will be divided in the event of divorce.
What is the purpose of a prenuptial agreement?
K: Prenups can provide valuable protections for individuals entering into marriage. Prenups can give couples peace of mind, prevent lengthy and costly legal battles in the event of divorce, and help to clarify financial expectations and responsibilities within the marriage.
F: From a therapist’s point of view, prenup couples flex their communication skills. Can you be open and honest with your partner about why you believe it is necessary? Can you discuss why this is important to either you or your family? How does creating a prenup make you feel? Does the subject of prenups highlight family boundaries and personal boundaries that you weren’t as aware of while you were dating? Kyle and I agreed that this type of conversation is essential early in the engagement. It sets the foundation to work through all the complex feelings and questions that will come up. A prenup conversation is one of many topics that can be challenging within your relationship. It’s important to feel confident engaging in conversation, no matter the topic.
Should every engaged couple have a prenuptial agreement? If not, who should consider creating a prenuptial agreement?
K: No, not every engaged couple should have a prenuptial agreement, nor do they need it. However, everyone should know what a prenuptial agreement is and what it can do. For instance, when my wife and I married, we knew about our respective income, debts, and property. As young professionals just starting out, we didn’t have any assets to protect. And although we knew what a prenuptial agreement was, it wasn’t something we needed.
There are four main scenarios when a couple should consider a prenuptial agreement. First, if one of them has a parent or parents insisting, “Hey son/daughter, either you get a prenup, or you are not getting married.” This insistence typically happens when family money is involved, and the family pressures the couple to create a prenuptial agreement. Second, if one of the partners is already in a well-established career or is anticipating their career will take off monumentally. For instance, in the case of a soon-to-be-wife who is about to launch a startup business, she may want to protect the business and keep it all hers – meaning she can craft the prenup to allow for any active and passive increases in the value of her business during the marriage to remain her separate property free from any claim or right of her husband. Third, a prenuptial agreement is often created if it’s a second marriage for at least one member of the couple. In this case, there may have been no prenup during the first marriage, or someone went through a difficult divorce. Therefore, the couple wants to be clear about who gets what and limit the amount of potential fighting when dividing up property and assets. The last scenario that may dictate a prenup is when there is a significant age difference between the couple. While this prenup scenario doesn’t happen very often, it does provide protections related to retirement and investments. All that said, it is rare to create a prenup when both sides of the couple have few assets or money.
If you know you need a prenup, when should you create one?
K: If you know you need a prenup, you should prepare and create one as far in advance of your wedding as possible. The earlier, the better. Do not wait until a month before your wedding to begin the process. Each person, if they both decide to hire a lawyer, will meet with attorneys, gather assets to fully exchange and disclose this information, and have time to review the document and make changes.
This process of full disclosure is also an insightful exercise so you are well aware of your financial position as a couple. Remember that everyone is busy, including engaged couples and lawyers. So, to be safe, plan for at least one month turnaround on a prenup. This timeline can increase or decrease depending on the preparedness of the couple and availability of the lawyers.
What can you include in a prenuptial agreement?
K: North Carolina law presumes that anything you acquire while married is marital. Marital assets include earned income, investment increases, and acquired property.
The law also says that whatever you inherit is presumed to be your separate property. When it comes to inheritance, you don’t need a prenup. However, it gets messy once people co-mingle inheritance into joint accounts. Once it is in a joint account, it is difficult to determine (especially over time) what part is the inheritance, what part is earnings, and at what point did it mix?
Prenups add an extra layer of protection for each person’s assets and property. A prenup can help define that inheritance is separate from marital property unless placed in a joint account. You can also include other items in your prenup like waiving alimony, creating provisions to receive a certain amount of money based on the marriage duration, or waiving various estate rights.
With a prenup, you can change the law by carving out parts you want to be left out. For instance, you are an investment banker with multiple investments, such as stocks and properties. You can create a prenup to state that whatever is derived from your current individual assets will remain your assets. Those assets are separate from your partner’s assets and will remain separate. Should there be a divorce in the future, your partner cannot go “after them.”
Is there anything that you cannot include in a prenuptial agreement?
K: Your prenup cannot include anything that affects children. This is public policy, as the state has an interest in protecting children. For instance, you cannot create a set amount of child support in a prenup because it is difficult to predict whether that set amount will meet the child’s needs. You also cannot set custody arrangements in a prenup because the future is unknown.
How long does a prenuptial agreement last?
K: It can last forever.
Should both parties have their own attorney?
K: Yes. An attorney can review the document to ensure that their client’s interests and protections extend fairly. Attorney review is the safest way to ensure that your prenup remains valid and enforceable. It shows you received legal advice and had an opportunity to change the document.
Do prenups equal distrust?
K: While a prenup could bring up feelings of distrust, they can be insightful regarding the motivation of creating one. The parents of one of the engaged parties may be pushing for a prenup. For instance, the fiancé might say, “My parents won’t proceed with wedding planning until we sign a prenup.” If that is the case, it’s a great way to determine if a prenup is to satisfy other family members versus something one of the partners in the relationship really wants. If it is to satisfy a family member (to protect the family’s money), a prenup can include special provisions that allow the married couples to create marital property by transforming separate property into marital for the joint benefit of the couple. A couple can work with their attorneys to create a prenuptial agreement that satisfies the needs of their parents and their marriage.
How much does a prenup cost?
K: The cost of writing a prenup can be a couple thousand dollars, assuming everything goes smoothly.
I’m considering getting engaged.
After reading this and examining whether you have assets or property that need to be considered when planning for your future marriage, contact Kyle to see if creating a prenuptial agreement is for you.
While this is an exciting time, it is also a significant time to talk about serious and necessary matters that extend beyond wedding planning. Talking to your fiance about your finances and the potential need for a prenuptial agreement can be tricky. Our therapists can help you and your fiance with supportive communication skills.
If you are ready to schedule an appointment and live in Arizona, Florida, North Carolina, South Carolina, or Texas, we can help. Contact us to get started.