Three questions before you sign a prenup

If someone has handed you a draft, read these three things first. If you’re the one proposing it, the order of events matters as much as the terms.

Drawn from the book: Chapters 29, 30 and 32.

What if I leave paid work? Go to the support section. The clause to fear is a blanket waiver with no carve-out for child care, illness, or disability. Ask for support to come back if you stop working for one of those reasons. It costs your partner nothing unless that happens, so a partner who means to treat you fairly has little reason to refuse.

How far does “separate” reach? Some drafts keep separate everything your partner owns, plus its income and its growth. Stay married twenty years under those terms and there may be nothing marital left to divide. Ask for a slice of the growth, even a small one that increases with time.

What do I get if my spouse dies? If the draft has you waive the elective share, find out what you get in its place. The usual substitutes are life insurance, the right to remain in the home, or a trust. “Nothing” shouldn’t be an acceptable answer.

Then hire your own lawyer, someone you picked. Your partner can pay for both of you. If you hear there’s no time or money for one, you don’t have to believe it.

If you’re the one proposing it

1. Talk first. Go through the term sheet and the ownership questions before anyone hires anyone, and stop when you share a single page you both accept.
2. Find out what you already have. An hour with a local family lawyer tells you what today’s default would do. Often it’s near what you’d write yourselves, and you can quit there.
3. Prefer a mediator unless you have a reason not to.
4. Disclose everything. Swap complete lists of assets, debts and income, and attach them.
5. Involve the second lawyer early. Anyone first called a week before signing can only say no.
6. Record your reasons. Each of you writes a plain paragraph on what you want the agreement to do.
7. Meet your state’s formalities. Its page covers notaries, witnesses, waiting periods, and any limits on alimony waivers.
8. Finish three months before the wedding. A postnup needs a quiet season instead.
9. Do the retirement-plan waivers separately, on the plan’s forms, in the marriage’s first week. A prenup alone won’t waive rights in a 401(k).
10. Calendar a review five years out.

The bad version runs in the opposite order: one side’s lawyer drafts it, it shows up unannounced, and the talking happens afterward.