Are prenuptial agreements out of date? Older generations have tended to shy away from prenups, but as it turns out, millennials are now taking advantage of the benefits of premarital agreements – and not simply to settle traditional issues such as finances and ownership of property.
What Is a Prenup?
A prenuptial agreement – also known as an antenuptial agreement or a premarital agreement, and commonly shortened to “prenup” or “prenupt” – is a contract entered into prior to a marriage or civil union. Traditional prenuptial agreements normally include division of property and spousal support in the event of divorce; these are the topics people usually think of when they hear the word “prenup.” In essence, prenuptials are usually seen as a backup plan in case a marriage doesn’t go quite as expected.
For that reason, prenuptials are often regarded as negative. Older generations consider it odd or even suspicious, associating it with questionable marriages. Rather than being considered as a marriage planning tool, these agreements are more often seen as an indication that a couple is actually expecting to get a divorce, or the presumption that one member of the couple will attempt to take advantage of the other in the event of a divorce.
Millennials are actually reversing this idea, with an increasing number of financially-aware millennials requesting pre-marriage relationship agreements in the interest of protecting their assets. However, finances are not the only matters that millennials are including in their prenuptial agreements.
The most interesting aspect of new millennial prenuptials is the uptick in unorthodox requests within these agreements.
These agreements often cover much more than just the division of a variety of assets for long-term couples. Millennial prenuptials range from maintaining a certain weight to stipulations about frequency of sex. Other unusual requests that have been made in relationship agreements include the division or shared custody of major purchases and even pets.
Prenuptials now encompass aspects such as lifestyle patterns and romance, often holding experiences in the same regard as physical belongings. Emotional experiences and equal responsibility are now on the same footing as property and money, as people in this modern era have begun to more publicly recognize mental health and gender gaps.
However, it is important to remember that not all prenuptial agreements are enforceable or easily enforced. Both parties should have attorneys representing them in order to ensure that the agreement is enforceable, especially if the requests within the agreement are not conventional ones.
Considering recent trends in millennial prenuptials, its better safe than sorry when it comes to the legality of some requests. Depending on individual cases, a private judge may be required to sit in during the signing of the document, and some attorneys even recommend videotaping the signing.
A Caveat: California Law and Cohabitation
Prenuptials are especially important in California, where common-law marriage, sometimes mistakenly referred to as cohabitation, has not been legally recognized since 1895. As of now, common-law marriages can still be contracted in the District of Columbia, Alabama, Colorado, Iowa, Kansas, Montana, Oklahoma, Rhode Island, South Carolina, Texas, and Utah. All other states have ceased to recognize common-law marriage, or have never permitted common-law marriage at all.
In short, common-law marriage is when a couple is married and considered married (in certain states), but has not formally registered its marriage civilly or religiously. It is similar to statutory marriage in that both partners must consent to the marriage, be of legal age or have parental consent, and must be able to marry – for example, some states do not allow prisoners to marry.
Some major differences include the fact that: Common-law marriages are not issued a marriage license, nor is a marriage certificate filed with the government; there is no formal ceremony with witnesses to the marriage; both partners must hold themselves out to the world as husband and wife (which is actually not a requirement of statutory marriage); and most jurisdictions require couples to be cohabiting when the common-law marriage is formed, sometimes for a minimum amount of time.
However, the term “common-law marriage” is often used by the media to refer to couples that live together, which causes some confusion about both the term and the legal rights of unmarried partners. Cohabitation, usually what the media actually means, is the actual term for a couple who is living together, and is overall more common than common-law marriage.
Cohabitation agreements essentially serve the same purpose for unmarried couples as prenuptial agreements do for married couples. The line between these agreements blurs when it comes to common-law marriage, mostly because common-law marriage is somewhat like the middle ground between cohabitation and statutory marriage.
However, unlike prenuptial agreements, cohabitation agreements do not include division of property, child support, or child custody in some cases. Because California does not recognize common-law marriage, it means that the only way to include property and finance in an agreement is to make a prenuptial agreement, rather than a cohabitation agreement. In order for the prenuptial agreement to take effect, common-law married couples should also seek a statutory marriage.
While marriage is often a lot more work than people expect, the same is true for the legalities of marriage, especially now that millennials are quickly evolving the age-old practices of processes such as prenuptial agreements.