Texas Divorce Laws

What Should a Woman Ask for in a Prenup?

By:
Sophia Merton
Updated
May 5, 2022

Prenups have become increasingly popular among millennials in recent years. Because this generation is typically getting married later than their parents did, it's more common for them to enter into marriages with more assets to protect and debts to deal with. If you're engaged, you might be wondering: what should a woman ask for in a prenup?

The short answer is: it depends. After learning more about prenups, you might find that a premarital agreement really isn't necessary for you and your spouse-to-be. On the other hand, you could decide that a prenup will protect the interests of both of you in a way that is worth pursuing.

If you're interested in creating a prenup, it's a good idea to start talking to your partner sooner rather than later. It's also advisable to familiarize yourself with the laws surrounding prenups in your state to understand what would and wouldn't be enforceable in court.

What are the types of things you might want to include in a prenup as a woman? Do you even need a prenup? Let's dive in and take a look at what you need to know.

Do You Need a Prenup?

A prenup isn't always justifiable, but whether or not it makes sense for you will have to do with your specific circumstances. Let's take a look at some of the most common reasons that couples might choose to get a prenup before tying the knot.

You or Your Spouse-to-Be Has Already Been Married

If either you or your partner has been in a marriage before, it's possible that the previously married party might only be willing to get remarried if there is a prenup in place. This might be particularly true for individuals who went through an agonizing, drawn-out divorce.

People that have been previously married and divorced are typically more aware of the issues that can pop up during the divorce process. Additionally, their future rights and obligations in the case of a divorce judgment or decree could also be impacted by a previous divorce.

One (or Both) of You Has Children

children from previous marriage

Engaged couples that have children from previous marriages might choose to have a prenup to protect the interests of their kids.

It is common for a person that is getting married with children from a previous marriage to want to protect the financial interests of those children.

One of You Has More Debt

Are you bringing quite a bit of debt to the marriage? Does your spouse-to-be have hefty student loan debts or medical bills? If so, you might choose to get a prenup in order to outline who will be responsible for repaying those debts in the marriage and how liability for those debts will be distributed in the case of divorce.

You might include in your prenup that no premarital debts that belong to one spouse can be paid using joint property acquired during the marriage. Or, you might require that the business debts of one spouse can't be paid using joint funds. If you don't have this type of agreement outlined in a prenup, creditors might try to collect the premarital debts of one spouse from joint assets that were acquired during the marriage.

One of You Is Wealthier Than the Other

rich man in bathrobe about to get married with a prenup

If you or your husband-to-be is bringing a lot of wealth into the marriage, a prenup can help to protect both of you in the event of divorce or death.

One common reason that couples choose to get prenups is when there is a sizeable gap in the wealth of the two parties. If you choose to marry someone that is quite a bit wealthier than you, you could have rights to property division and spousal support down the road without a prenup.

These agreements can be beneficial to both parties. Even if you are the party with less money entering the marriage, it's possible that you will end up becoming the wealthier party through the course of the marriage. If this is the case, you will end up being protected in the case of a divorce as well.

You Want to Keep Your Personal Life Private

Some couples might choose to get a prenup in part so that they can create confidentiality clauses that help to protect private information. It's also possible to include an agreement that any disputes will be handled by arbitration, which can help to keep private information away from the public eye.

One (or Both) of You Owns a Business

If either of you owns a business before marriage, it can make sense to have a prenup in place before marriage. This is because a divorce could potentially injure or completely destroy a family business. If you own a business along with other people, you might want a prenup to ensure that your business partners' share of the business isn't affected by the marriage dissolving.

One (or Both) of You Has an Inheritance

Another reason people might pursue a prenup is to protect generational wealth and future inheritance. While an inheritance wouldn't necessarily be considered joint property in the marriage, there are still ways that the inheritance can be unintentionally commingled with marital property.

In order to avoid this, it's always best to keep an inheritance in a separate account that belongs only to the person who received the inheritance. Getting a prenup, though, can also help to clear up any confusion over whether or not the inheritance remains the property of the inheritor in the case of a divorce.

One of You Plans on Being a Stay at Home Parent

stay at home mom with a baby and a prenup

Are you planning on being a stay-at-home mom after you get married? If so, a prenup can help protect your interests.

If you're going to be a stay-at-home parent, prenups can help ensure that you are protected if you end up getting divorced down the road. When you stay home to raise children, you are choosing to do so instead of pursuing a career. Without a prenup, this can put you at a disadvantage if you get divorced and need to rejoin the job market.

For this reason, a prenup might include decisions about providing property or a sufficient income for the stay-at-home parent to ensure that they can maintain a comfortable lifestyle if a divorce occurs.

Why Might a Woman Want a Prenup?

A woman might want a prenup for many of the same reasons a man would. A prenuptial agreement can help to protect both of your financial future and also save a lot of potential disagreement in the future.

While prenups might seem like a pretty unromantic task to attach to a marriage, they can actually be a worthwhile investment. They can serve as an outline of your finances as a couple while also helping to avoid a contentious and expensive divorce if the marriage ends up not working out.

Whether or not it makes sense for you to get a prenup depends on your particular circumstances. If you're wondering whether or not it's worth it to get a prenup, see if you and your spouse-to-be fall into any of the categories listed in the section entitled "Do You Need a Prenup?"

If you are on the fence about whether or not a prenup is necessary for your circumstance, consider seeking the counsel of a legal expert. They will be able to give you advice that is tailored to your financial and personal situation.

What Should a Woman Ask For in a Prenup?

Are you about to get married and you're interested in having a prenup before you say "I do"? What you ask for in a prenup will depend greatly on your specific situation.

For example, if you are the breadwinner in the family, you might be concerned about what will happen to your non-marital property if you get divorced. If you are a homemaker, on the other hand, you might be more concerned with outlining an agreement regarding spousal support.

It's important to remember that a lot can change over the course of a marriage. Even if you are making more money than your fiance now, it could end up that they end up making the bulk of your marital income down the road. When you're creating a prenup, you want to outline an understanding that will protect both of you in the case of a divorce, regardless of the property or debts that are acquired during the marriage.

There is no set checklist of things to ask for in a prenup. Let's take a look at some common aspects of prenups that you might want to include depending on your circumstances.

Premarital Assets and Debts

Most states in the United States are common law property states. This term refers to a system where any property that one individual acquires during a marriage is owned solely and completely by that person. However, if you and your spouse jointly purchase an asset or take on debt, ownership or liability is split 50/50.

There are eight states in the United States, however, that are community property states. These are:

  • Texas
  • Calfornia
  • Arizona
  • Louisana
  • Idaho
  • Washington
  • New Mexico
  • Nevada
  • Wisconsin

In these states, all assets that are acquired while the two of you are married are considered marital property. Spouses in these states own all marital property equally. This can include all property, earnings, and debts that were accrued when the two of you were married.

Assets that were acquired before the marriage, however, are considered separate property in these states. Separate property also includes property inherited by just one spouse, property given to just one spouse either before or during the marriage, or property owned by just one spouse prior to the marriage.

It's a good idea to understand the laws regarding property ownership and marriage in your state when you are drafting a prenup.

An important step in creating a prenup is making an exhaustive list of all of the assets and debts that each of you own. You will want to consider how you want premarital assets and debts to be dealt with both during the marriage and if you end up getting divorced.

You can also use your prenup as an opportunity to decide whether your separate property will remain separate when you enter the marriage. If one of you chooses to help pay off the other's debts using premarital property, you can also outline whether the paying spouse will be reimbursed or if this payment is a gift.

Lastly, you can also use your prenup to outline how you will purchase a home that you'll own together. If one of you is planning on using premarital property to purchase the house, you can outline whether the paying spouse is gifting this to the other or expects to be reimbursed.

Alimony

Also known as spousal support, alimony is something that you can include in prenups but you certainly don't have to. The first thing you'll want to do is look at your specific state laws regarding alimony and decide whether or not you want to make agreements about spousal support that differ from these laws.

In your prenup, you can address whether there will be any limitations regarding spousal support in terms of the duration, amount, and terms of support if a divorce were to occur.

Another consideration when you are deciding whether or not to address alimony in your prenup is whether or not both of you expect to work and contribute to the household.

Marital Property

After you get married, how will you and your spouse handle the income and assets that you accumulate together? Prenups aren't just documents that outline what happens in case of divorce or death, but can also serve as an opportunity to create a written agreement regarding your family's financial plan.

Management of Assets and Income

It isn't uncommon for married couples to have very different styles of dealing with money. While this can certainly end up just fine, in other instances it can be a recipe for a lot of disagreement in a marriage.

In your prenup, you can outline how you and your spouse plan to deal with all matters of financial issues, such as how bills will get paid, how financial decisions will get made, and whether you will maintain bank accounts that are separate, joint, or both.

Debt and Credit

Before you get married, it's important to be able to talk openly with your partner about each of your financial situations. This doesn't just include income and assets, but also debts.

This is an opportunity to learn if your partner has bad credit, back taxes, or other issues that could become your problem if aren't careful.

Working

married man with a prenup going to work

A prenup can also be an opportunity for you and your partner to outline your plans regarding work, parenting, income, and more.

If you and your husband are planning on having children, you might want to sit down and think about how you feel about non-monetary contributions. Many states recognize this type of marital contribution, such as managing the household or raising children. However, it's a good idea to talk these things over before getting hitched.

Discussing your expectations about who will work and what kind of income the two of you will bring to the table can help to avoid disagreements down the road. You can also talk about how you will deal with decisions regarding when to retire, whether you should move for a job, how you will raise children, and whether either of you anticipates a career change at any point.

NOTE: Make sure to check out our article about how you do NOT need an attorney to get a divorce in Texas.

Infidelity Clause (And Other Lifestyle Clauses)

Some women might consider including what is known as an infidelity clause in their prenup. Whether or not doing so is a good idea is kind of a controversial issue, as you might imagine. That being said, it's worth knowing that it's possible when you are considering creating a prenup before marriage.

If your husband doesn't have any history of cheating, many lawyers will suggest striking this type of clause from a prenup. This is because prenups intend to protect the interests of both parties. Without a history of infidelity, it is hard to argue that this fits within the realm of reasonably protecting the interests of you and your husband-to-be.

It's also pretty difficult to prove infidelity in many instances. Not only is the definition of what it means to cheat pretty subjective, but evidence can be difficult to drum up.

Infidelity clauses are actually only one type of contractual clause that falls under the category of a "lifestyle clause." Often, the terms of these clauses imply a financial penalty for violating one of the behaviors that is prohibited within the clauses.

Other examples of lifestyle clauses include:

  • Random drug testing for a spouse that has a history of drug use
  • How children will be raised
  • The frequency of intimate relations
  • How much time you spend with each other's in-laws
  • How many homemade meals are prepared every week
  • How much weight a spouse can gain
  • Prohibiting social media posts about the other spouse in the event of separation or divorce
  • Custody of pets in the case of divorce or separation
  • How often the couple participates in social activities

While some of these might seem a little ridiculous, some couples choose to outline their lifestyle expectations in these ways.

But these don't really hold up in court, do they?

Basically, it depends. Different states have different laws about prenuptial agreements and what kind of clauses are enforceable in court.

For example, the Supreme Court of Florida found that all provisions in a prenup can be enforced, even when "unreasonable," so long as both people entered into the agreement freely.

On the other hand, an appellate court in California found that holding a spouse responsible for cheating through an infidelity clause wasn't consistent with the no-fault divorce policies of the state.

When Should You Begin the Prenup Process?

If you are planning on getting married, it's a good idea to start the process as soon as possible. If you wait until too close to the wedding, you can stress the decision-making process because emotions will naturally be running high.

Some experts recommend finalizing your prenup at least thirty days before you plan to get married. It is common for the party that is bringing more assets or income to the marriage to hire an attorney that drafts the prenup. The other partner also gets their own lawyer, who reviews and negotiates the prenup terms and offers suggestions for edits or changes.

At least seven days before the prenup is signed, the final draft needs to be presented to the individual whose lawyer didn't draft the agreement. When everyone involved has agreed to the draft, the agreement can be executed.

Can a Prenup Include Child Custody and Support Terms?

In most states, issues of child custody and support included in prenups are not required to be enforced. It is typically advised that you don't include terms regarding child custody and support. However, you will want to discuss this with your lawyer who will understand what is and what isn't permitted in your state when it comes to these types of prenup clauses.

What If Your Fiancé Won’t Sign a Prenup?

Prenups must be signed by both parties voluntarily. So what do you do if your fiancé doesn't want to sign one?

One approach is to try and help your husband-to-be understand how a prenup can be useful to both of your interests. Maybe you have a lot of student loan debt, for example, and the prenup could help protect him from being liable.

You can also take this opportunity to explain why you think a prenup is a good idea. You can discuss the benefits of prenups that have to do with family financial planning and point out that they aren't just documents that outline what happens in case of a divorce.

That being said, all you can really do is try to argue in favor of how a prenup will benefit you. At the end of the day, they have to be willing to voluntarily sign. You are then left to decide whether or not you're willing to get married without a prenuptial agreement.

Are You Getting Married in Texas?

If you're a bride-to-be in Texas, it's a good idea to understand the specific laws about prenups in the Lone Star State. On top of that, you might want to familiarize yourself with other marriage and divorce laws in Texas. Be sure to check out TexasDivorceLaws.org for more useful resources.

Written By:
Sophia Merton
Sophia received her BA from Vassar College. She is a researcher and writer that aims to help make the complexities of the legal system understandable to the layperson. Believing that people can be empowered by understanding their rights and responsibilities under the law, Sophia aims to offer accurate and well-researched information in straightforward and easy-to-digest legal articles.

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