Do you own property?

Property that you own before marriage can stay your own separate property. The increase in value/appreciation of that property and the income from that property may stay your own separate property. But in certain situations, it's possible that part of it could be considered community property. A prenup can clarify this issue. Nothing prevents you from leaving some or all of your property to your spouse in a will or trust. A prenup can give you this choice.

Do you have a retirement account?

The money you put into a retirement account during marriage can be considered community property. You spouse would be entitled to half of it if you get divorced. Your retirement plan would be directed to pay a certain amount of your retirement account to your spouse. A prenup can address this issue to keep your retirement account your separate property. There are also federal rules related to 401k and similary accounts (not IRAs) that require a spouse to disclaim a right to those funds. Nothing prevents you from naming your spouse as a beneficiary of your retirement account.

Do you or your fiancè/fiancèe have debts?

Debts before marriage are generally separate property. But debt collectors can go after your share of the community property in certain situations. A debt collector is not bound by your prenup agreement, but the way that you characterize your property can prevent a debt collector from going after your assets to pay your partner's debts.

Do you want income after marriage to be shared with your spouse or kept separate?

Marriage creates a presumption that all income earned after marriage is community property, meaning you each own 50%. If you want to change this default rule, you will need to have a prenup. You can still put money into a joint account that can be considered community property, but it is a decision you make unrelated to the income you earn.

Do you want to be responsible for your spouse's debts after marriage?

Each spouse is responsible for the debts of the other. A debt collector can come after all of your community property for the debts created by one of you. If you want to prevent debt collectors from doing this, a prenup can help. Debts before marriage are by default considered separate property.

Do you own your own business?

If you own your own business, any income from your business or increase in value of your business due to your efforts is community property by default. You can still run your business as you see fit, but your spouse has an interest in the business unless you state in a prenup that the business is separate property. If you have a business with partners, they may not want to have to deal with a spouse taking ownership in the event of divorce or death.

Do you want to leave significant assets to someone other than your spouse?

A spouse has certain claims they can make on your estate even if you have clear instructions in your will or trust. A prenup can clarify that your spouse is limiting or forfeiting those rights. This does not mean that you are prevented from including your spouse in your will or trust, but that whatever action you take cannot be challenged based solely on your relationship.

Are you ok with paying state-determined alimony/spousal support if you get divorced?

If you get divorced, a judge will determine the monthly amount of support one spouse may have to pay to the other and over what period of time the payments need to be made. There are multiple factors that go into this determination. The court will look at the standard of living during the marriage and attempt to keep each party at the same standard of living as much as that's feasible, considering it is splitting one household into two. The court will also consider: What is the ability of each party to earn a living? Are they healthy enough to work? Are there children involved? These questions will not only help the judge determine the amount of support, but also the length of the support and whether it's for a set time and then stops completely or if a spouse can come back later and ask the court to change or stop the support. Additionally, there are two kinds of spousal support: "pendant lite" and permanent support. Pendant lite support is temporary and is paid between the filing of divorce until the divorce is final and the judge sets the amount of permanent support. If your divorce is litigious, this pendant lite support can go on for a few years. It may be based on the above factors or a set formula.

Do you have at least 30-45 days before the date of your marriage?

A prenup must be done before marriage, but the couple must have an intent to get married when the prenup is signed. You do not have to have a wedding date. However, the earliest a prenup should be done is six months prior to the marriage. This is because you will be disclosing your finanical situation, so if you wait too long between creation and signing, your financial situation may change. You can of course update the agreement. There is also a required seven-day wait from the time you receive the final written agreement and when you sign it. This is to make sure that each spouse is ok with the terms of the agreement and wasn't forced to sign under pressure. For example, one spouse cannot complete the agreement and then try to get the other to sign it the day before the wedding. It's optimal to begin a prenup 3-4 months before getting married and to prepare to sign it several weeks before. Six weeks before the wedding is the minimum amount of time necessary to discuss a prenup, prepare and revise an agreement, and wait the required seven days.

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