6 Things You’re Forgetting in Your Prenup (From a Divorce Lawyer)

What's yours is yours

Updated 07/29/17

Olivia Rae James

If you and your partner have decided to draft a prenup before you head down the aisle, you’ve already got lawyers helping you make sure everything is covered. But there are a few items that often get overlooked, so we turned to an expert to break down the six things to make sure you’re not forgetting.

You’ve got your car, your house, and your investments covered, but there’s more to a prenup than that. Divorce attorney Louis M. Atlas has six things you definitely can’t forget to include before you initial, sign, and date the agreement.

A Girl's Best Friend

“Any property of value that you own at the time of your marriage should be listed in a prenuptial agreement as your separate property,” says Atlas. “It is not subject to division as marital property in the event of a divorce.” And that diamond ring you received when your partner proposed counts! “Any engagement ring you were given is considered a gift. It is your own property and should be listed as such,” Atlas explains. Have your ring appraised so you’re aware of the value.

As a side note: make sure you pay special attention to rings made with lab-grown diamonds. They may look identical to the real thing (and are a match chemically, as well!), but the fact that they aren't natural can diminish their value—or nullify it altogether. Because they do not hold the same value as natural diamonds, Atlas does not recommend including a ring with lab-grown diamonds in your prenup.

Cover Your Business

Are you a small business owner or an investor of some sort? “A business that you have a financial interest in at the time of your marriage should be listed as your separate property in the prenuptial agreement, including any increase in its value after marriage,” Atlas says. “Unless specifically excluded in a prenuptial agreement, assets acquired after marriage are presumed to be marital, regardless of the name in which the property is held.” So if you don’t specify that the increased value of your business is also yours, any additional value would belong to both of you, even if the business or shares are in your name.

Your Debt

It’s not just about assets. Says Atlas: “Each prospective spouse should also list their debt at the time of marriage so that it is clear it is a separate obligation and not the obligation of the other prospective spouse.” If you don’t specify whose debt is whose (and who is paying it off), you could be on the hook for your spouse’s debt if the collectors come to call.

Future Spends

Most of your prenup can’t cover the future, but this is a special case. “Any gifts exchanged between spouses (as opposed to a gift given by a third party) are generally considered marital property,” says Atlas. “If you want any gifts you and your partner exchange to be considered the recipient’s separate property, you must say so in your prenuptial agreement.”

Your Furry Friend

Children are a no-brainer when it comes to writing a prenup, but don’t forget your non-biological child(ren)—your pets! “If you and your spouse have a pet together, there should be mention of that pet—and any future pets—in the prenup, clearly outlining who will care for the pet, and if any financial responsibility for the pet will be split after divorce,” Atlas says. It’s hard to imagine who will get custody of Fido in the event of a divorce, but this is an agreement you’ll want to decide upon in advance to avoid incredible heartache.

Steer Clear of Social Media

You may want to talk about it with your spouse, but a social media clause is one that you do want to forget. “With the continuous rise of social media, more and more couples are choosing to include a social media clause in their prenup, essentially limiting the time that can be spent on social media,” says Atlas. “Enforcement of this clause, however, is a bit questionable and provides more gray area in a prenup.” Our advice: stay away from anything that creates a gray area. After all the negotiation, time, and effort put into drafting a prenup you both agree on, it would be a shame for everything to go down the drain because of a social media post that breaches the clause.

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