It is wise to garner a basic understanding of how things work before beginning the process of a prenup. This prevents mistakes and oversights from your end. Trust us, you don’t want a flawed prenup to become a liability later on. Let’s look at a few dos and don’ts in consultation with advocate Siddhartha Mishra (BA, LLB), a lawyer practicing at the Supreme Court of India. There are two important qualities you need to cultivate – foresight and attention to detail. Both are essential; foresight helps you plan for every possible scenario and attention to detail protects each source of income. These two, along with our pointers, will go a long way in helping you prepare for a prenuptial agreement.
What Should A Woman Keep In Mind For In A Prenup?
What is a fair prenup and why is it so important? Siddhartha says, “A prenuptial contract, commonly known as a prenup, is a written contract you and your spouse enter into before getting legally married. It details exactly what happens to finances and assets during your marriage and, of course, in the event of divorce. “One of the most important advantages of a prenup is that it forces couples to have a financial discussion before the marriage. It can save both the parties from carrying on each other’s financial obligations post marriage; it allows you to avoid becoming responsible for your spouse’s debts.” Contrary to the popular belief that a prenup breeds mistrust, it promotes honesty and transparency between partners. If you’re still on the fence about getting the contract drafted, this ought to be a good enough reason to take the plunge. We now move on to answer other, more important questions. What should a prenuptial agreement include? And what should a woman ask for in a prenup? Here’s what we think you ought to keep in mind when you prepare for a prenuptial agreement.
1. Cast away the sentimentality
Siddhartha explains “It is essential to keep your emotions aside while drafting a prenup. Since marriages are believed to be sacred, it is difficult to weigh them and put them in contractual terms. But you have to look past that. When it comes to the future nothing is ever guaranteed, but having a valid and fair prenuptial agreement in place before you take your vows can give you both the peace of mind you need to embark on your new life together.” The most important prenuptial agreement advice you’ll get is not ‘playing nice’ while drafting the contract. Don’t make decisions based on what your partner or others might think. Look at it this way – it’s best to sort out the nitty-gritty of finance before you get married. Money and marriage are best organized first for a solid future. You can then focus on the emotional aspect of the relationship wholeheartedly.
2. Full disclosure is a must – prenuptial agreement advice
Siddhartha makes an astute point, “The agreement has to be fair and the parties have to fully disclose their assets. Hiding assets destroys the purpose of having a peaceful prenup.” If your common prenuptial agreement clauses are going to create more problems in the event of divorce, then you might as well not have it drafted. The aim is to minimize stress/hassle, not to provide another point of contention. Full disclosure includes assets, debts, and income sources, (more on all these coming up ahead). If you’ve got any family heirlooms to your name, you’re obliged to list them too. A fair prenuptial agreement is not possible without honesty from both parties. In fact, concealment in the prenup asset list can go against you if the agreement is ever contended in court. Our advice is to be an open book when it comes to contracts like these.
3. Appoint an experienced lawyer
Siddhartha explains, “It is crucial and important to work with an experienced lawyer who is knowledgeable in matrimonial law and a financial adviser to make sure that all assets and liabilities are included accurately. But while retaining expert legal advice when drafting a prenuptial agreement is critical, you need to do some prep work before you bring the lawyers into the process. When it is time to bring in legal counsel, both parties have to have the essential terms of the contract worked out beforehand.” Yes, you’ll have to put in some work for the prenup too (and this prep will make you ask is marriage even worth it?). Needless to say, you and your partner need to hire separate legal counsel for the contract. Sharing is not caring when it comes to a prenup. An equally important thumb rule is listening to your lawyer. They’re adept at their job and have seen more marriages and agreements than you have – pay heed to their instructions. The answer to what should a woman ask for in a prenup lies with her lawyer.
4. What should a woman ask for in a prenup? Safeguard the rights of your children
Children from previous marriages are usually a part of the common prenuptial agreement clauses. Their financial safety is your priority and you can safeguard the same by delineating inheritance in your contract. You can state if any property belongs to the children and which of your assets are to their name. In the event of your passing (or separation), your spouse cannot lay claim to these assets. It is best to be as clear as possible when you state these terms. It is not very efficient to include clauses on child custody since the courts make that decision when a couple divorces. At the time of separation, the courts may deliver a verdict of joint or sole custody after evaluating the parents. So, what should a prenuptial agreement include besides the financial security of the children? Many people choose to include pets in prenups these days since concepts like ‘dog-parenting’ are on the rise.
5. Alimony is an important factor
It might seem cynical to include a clause on alimony before you’re even married but this too is a protective measure. Consider one scenario – you are a stay-at-home parent. If you intend to become a homemaker at some point in your marriage and look after the children, you are foregoing career advancement and financial autonomy. It becomes vital to guard your well-being. You could include a clause stating the alimony in the event of you being a stay-at-home mom. Another example can be cases of infidelity or addiction. It is always beneficial to have provisional clauses for every possible situation. If you find yourself thinking about what should a woman ask for in a prenup, be sure to remember alimony clauses. Because you might find yourself on the giving end of alimony. Because the same is applicable if your husband plans on being a stay-at-home dad. Siddhartha gives us a few helpful statistics, “70% of divorce lawyers say they have experienced an increase in requests for prenups. With more women in the workforce, 55% of lawyers saw an uptick in the number of women responsible for alimony payments, which has led to an increase in women initiating drafting a prenup in recent years.” Recall the words of Benjamin Franklin who said, “An ounce of prevention is worth a pound of cure”.
6. Pre-marital property and income are a must in the prenup asset list
So, what should a woman ask for in a prenup? She should retain possession of any property and income that is her own, i.e., her independent means. This is a common practice when one party is wealthier or owns a business. So much hard work, time, and money go into developing a business from scratch. It is natural to want to protect this from a third-party claim. If it’s a family business, the stakes double. But this does not go to say that only the wealthy should make prenups. Even if your business is a small-scale one or your property of mid-value, be sure to list them in the contract. Ditto for generational wealth. We’re sure that your spouse would never claim a share of your personal assets but divorces get uglier more often than you’d think. It’s better to not mix business with pleasure (quite literally) and keep your assets protected. (Hey, here’s your answer to ‘what is a fair prenup’.)
7. List premarital debts – Common prenuptial agreement clauses
What to expect in a prenup, you ask? Listing debts is just as important (if not more) than listing assets. There are two kinds of debts you need to consider while making a fair prenuptial agreement – premarital and marital. The former refers to debts incurred before the couple enters a marriage. For instance, a hefty student loan or housing loan. The partner who has incurred the debt is the only one liable to pay it, or so the contract should state. Marital debts refer to those incurred during the marriage by one or both partners. There can be provisions for the same if one of the individuals has a history of gambling. Naturally, you don’t want to be responsible for the irresponsible financial choices of your better half like credit card debt. You can protect yourself from financial infidelity with straightforward clauses. Our prenuptial agreement advice is to not have any marital property used for paying off individual debt. Assets co-owned by you and your partner should not be a source for fulfilling personal financial obligations.
8. Discuss property division
Besides alimony and protective clauses, what should a woman ask for in a prenup? She ought to ask for clarity on property division. You can outline how your assets and debts will be divided if you ever opt for divorce. Say, you both jointly purchase a car after getting married. Who gets to keep it if you separate? If there’s a car loan, who will pay off the EMIs? And this is just a car we’re talking about. Think of the number of assets/debts a couple takes on together. So, what else can you expect in a prenup regarding property division? Common prenuptial agreement clauses also address gifts given during the marriage. Maybe the giver takes them back after a separation or maybe the receiver retains possession. Specifying this is important for expensive presents like jewelry or luxury goods. Think of the A to Zs of what you both might co-own; your prenup asset list should include everything – shares, bank accounts, a home, business, etc. It’s always good to talk about mutual finances before marriage.
9. What is a fair prenup? Be reasonable with the clauses
Siddhartha says, “A prenup must be fair to the breadwinning spouse as well as the less-moneyed partner, and it should not be draconian in nature. You run the risk of invalidating your agreement if certain factors raise eyebrows.” And he couldn’t be more correct. There are two mistakes you might make – trying to include everything and expecting too much of your partner. While a prenup is made by keeping the future in mind, it is impossible to foresee everything. For instance, you can’t (and shouldn’t) include clauses on where your spouse will travel. Secondly, you can’t state extravagant clauses of what your partner will do for you if you choose to divorce each other. You are entitled to child support and alimony but you can’t claim a share in his inheritance. Keep realistic expectations when you prepare for a prenuptial agreement. Be fair to yourself and him. You now know the answer to what should a woman ask for in a prenup. Now that our technicalities are sorted, we wish you a long and happy married life filled with love and laughter. May this fair prenuptial agreement be the beginning of something beautiful!
