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What is the most common clause in a prenuptial?

If you are getting married soon, a prenuptial agreement may be on your mind. Perhaps you have independently owned assets you do not want to put at risk, this would be your second marriage or you own a business. Virtually any reason you want for having a prenuptial is valid.

It is normal, though, to be unsure where to start. So, it helps to know the most common clause that tends to be in prenuptial agreements.

Clarifying separately owned property and debt

This clause identifies each spouse's property and debts. The intent is that in the case of a divorce, the debt remains the responsibility of the party who incurred it before the marriage, and property stays with the person who owned it before marriage as well.

However, this clause may not be enough to hold up in court if your spouse contests the agreement. If you commingle that property, for example, depositing $30,000 of the cash identified in the prenuptial agreement as yours into a joint account, your spouse could have a claim to part of that $30,000.

Consider whether there is even the smallest chance that your spouse might use your property. For example, if you both will be living in your house, you can draft the agreement so that your spouse gives up all rights to contest the house later on despite living in it. This acknowledgment shows that your spouse was fully aware of the situation, and the agreement has a better chance of holding up.

What about businesses? If you own a business and it grows in value during the marriage, your spouse could have a claim to a share of that growth if there is no prenup. So, you may want to include some type of agreement regarding that business growth.

By clarifying separately held property, you can ensure that certain assets stay in the family for yourself or your children and that your business will not take a massive hit in the middle of your divorce.

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Schwartz Law Firm
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