You and the bride are ready for the big day. You’re locked in for the dress, the tuxes, and the food. You’ve booked a great place for the party afterwards. You’ve already figured out how to pay for the wedding and honeymoon, but what about protecting your financial future with a prenuptial agreement?
Prenups Aren’t Sexy
Yes, I know. Prenups are not romantic.
For most of us, getting a prenup ranks right up there with getting a root canal. It’s painful, expensive, and makes you think about things you would rather not deal with.
Telling your soon-to-be-spouse that you want a prenup seems like the ultimate lack of trust. It makes you feel like your upcoming marriage is little more than a business transaction.
What’s more, unless you are a member of the uber-wealthy elite, you may think that getting a prenup is a waste of time and money … not to mention the ultimate way to kill “that loving feeling,” that you are so enjoying right now.
I hate to be the one to break it to you (lawyers are rarely the bearers of good news!) but, if that’s what you are thinking, you’re wrong!
Figuring Out When a Prenuptial Agreement is Needed
Prenuptial agreements are not just for the super rich. They are for anyone who wants or needs to protect the financial future for themselves or their children.
You should have a prenuptial agreement if you are:
• Anyone with children from a prior relationship.
• Anyone whose fiancé has significantly less income or assets than they do.
• Anyone whose fiancé has significantly more debt than they do.
• Entrepreneurs, or anyone who owns a business (either alone or with others).
• Professional athletes and celebrities.
• Inventors, writers, actors, or anyone who creates things that may potentially pay them royalties in the future.
• Anyone who has assets or stands to inherit assets that they might not be able to keep separate (like a home that they live in as a married couple, or a business interest).
A formal agreement may not be needed if you are:
• A young couple with no kids, no money, and no businesses.
• A couple where both soon-to-be-spouses have substantially similar assets, income, debts and expenses (and no kids).
• A couple where both potential spouses have less than $100,000 in assets to protect.
• Anyone who doesn’t care what happens to their money if they die or get divorced.
• Anyone who is not willing to be honest about their financial situation.
Make Sure Your Agreement Will Stand Up in Court
So, you’ve decided to bite the bullet and get a prenup. Now what?
The first thing you need to do is: Get a lawyer.
Yes. I know. You would rather do it yourself. Or, you think that you can just pay a few bucks, download a sample prenuptial form, fill it in, and call it a day.
Before you do that, ask yourself one question: If your tooth was causing you excruciating pain, and you had access to a dental drill and some temporary pain killers, would you do a root canal on it yourself?
I don’t think so.
If you did, chances are that, once the anesthetic wore off, you would either have destroyed your tooth, or it would be missing entirely.
Don’t step over dollars to pick up dimes. In other words, the attorney fees you pay today can save you thousands of dollars later.
While drafting a prenuptial agreement might not seem that difficult to you, a good premarital agreement (i.e. one that actually holds up in court) must meet legal standards.
If your prenup doesn’t meet the requirements of the law in your state, you might as well not bother getting one in the first place.
Your prenup will be worthless.
Six Ways To Protect Your Financial Future
Prenups can cover a multitude of different areas. They can be as simple or as complex as you like.
What you will want and need in your prenup depends upon your particular situation.
Here is a list of the six things you might want to include in your prenup to protect your finances:
1. Full Disclosure of Both of Your Assets and Liabilities
I once had a prospective client who was shocked to discover that the only way a prenuptial agreement would be valid was if both he and his fiancé honestly and completely disclosed all of their assets and liabilities to each other. I guess he was expecting his bride to sign away all of her rights to everything he had, even though she had no idea about what it was! Needless to say, that didn’t fly. No matter where you live, if you are not willing to come clean about your finances you might as well forget about getting a prenup.
2. The Names of Both of Your Attorneys
A court is not likely to enforce an agreement if you and your fiancé didn’t know your rights before you signed them away. To make your prenup enforceable, you and your fiancé should both get legal advice from your own, individual attorneys. (In some states getting this advice is required. In others, it is just recommended.) Also, you can’t both use the same attorney. You each need independent counsel to advise you of your rights.
3. A Clear Explanation of What Happens to Assets and Liabilities if You Divorce
This is the reason most people get a prenup: to determine in advance who gets what assets in case you and your then-spouse divorce. Depending upon the laws in your state, you may be able to determine what pre-marital or non-marital assets each of you will receive if you divorce. You may also be able to state what will be deemed to be marital assets (or community property) and what will always remain your separate property.
4. A Clear Explanation of what Happens to Assets if You Die
Many people don’t realize that prenups can operate, not only in cases of divorce but, in death, too. That is one of the major reasons that those with children from a prior relationship need a prenuptial agreement. You and your spouse can determine in advance what assets will be “non-marital” and subject to disposition at death through a Will. (Just remember, that a prenup should work together with a Will. It is not a substitute for a Will and will not be enough, by itself, to dispose of assets should you or your spouse die.)
5. A Determination of Spousal Support/Alimony/Maintenance
You can use a prenup to decide in advance whether either spouse will be obligated to support the other if the couple divorced. You can also determine how much the support will be, how long it will last, and under what conditions it is triggered. For example, you could say that neither party can get support from the other if you have not been married at least five years.
6. A Determination of Who Pays the Attorney’s Fees if You Divorce
One of the most hotly contested issues in a divorce case can be the payment of the attorney’s fees. If you and your spouse agree, you can state in advance that you will each be responsible for paying your own fees if you divorce. You may also want to state that, if either party contests the prenup in court, and the judge holds that the prenup is valid, the contesting party will have to pay all of the attorney’s fees involved in taking this issue to court.
The Bottom Line
Planning a wedding is fun (at least for some people!). Planning a prenup … not so much. Yet, if you could spend just a fraction of the amount of time, money, and energy that you spend planning a wedding, on getting a prenup, you can save yourself a lot of grief and money if the marriage ends.
Do you have a prenuptial agreement, or wish you did? Leave your comments below.
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