Prenup or No Prenup?
Who Is Ruling, Your Mind Or Your Heart?
Here's the scene: You and your beau are in a candlelit restaurant, you lean over to him and say, “I love you and trust you; I want to spend my whole life with you, but before we move forward, could you please sign this prenup my lawyer has so kindly drawn up?” This may not be the romantic conversation he wanted to have.
The Prenup Pros
- Protects your individual property, especially if assets are not evenly balanced when you come into the marriage.
- Defines what property is considered marital and what is communal, and the proportions, thereof.
- Arranges the legal aspect, if a divorce or death occurs. Plans should be made to take care of the surviving spouse.
- Sets the stage for estate planning, with or without kids/grandkids in mind.
- Outlines which of the spouses will manage business, investment and banking relationships (hopefully with the other’s knowledge).
- Provides full disclosure of assets, debt and income.
If you have been married before, the prenup can be used to have your new spouse waive rights as a beneficiary of your retirement plan, for instance, if you want your previous spouse and/or existing children to be the beneficiaries.
The Prenup Cons
- It’s a tough conversation
- It’s a tough conversation
- It’s a tough conversation
Get the point? According to Nolo, “The laws of your state may do a fine job of accomplishing what you want. For example, you may live in a community property state where assets owned before marriage are separate property and those accumulated during marriage are community property that is owned fifty-fifty. If this is essentially what you would want in your prenup, or maybe even better than what you expected, you may ask why go through the work of negotiating a prenup? Still, you’ll want to be sure that you’re not facing any special circumstances where your state law is unclear.”
Should You Bite The Prenup Bullet?
I say that, if you come into a marriage or partnership where the assets are “uneven,” the answer is, “Yes,” especially if you are an older couple. If you have been divorced and there are his/her kids, the answer is also, “Yes.”
I’m a Baby Boomer and I can’t think of anything more loving and caring than having a prospective husband (or wife) be thoughtful enough to make sure the other is taken care of after they are no longer there to share the other’s life. Even if you are young and asset poor, you may be inheriting great grandma’s brooch that has been in the family for 100 years, and great grandma will roll over in her grave if your now-husband gets a divorce and his new wife shows up wearing her brooch at the new wedding.
Prenups are for everyone. An article featured on Bankrate advises, “Although prenuptial agreements are often associated with celebrity couples — and their headline-generating divorces — they’re not just for boldface names. Any couple who brings personal or business assets to the marriage can benefit from a prenup. The most basic of these contracts lists an inventory of premarital assets that in the event of a divorce will remain the property of their original owner.” Your great grandma will be able to remain calm, wherever she is.
By the way, do not try this one at home. I know that there are lots of sites for the “Do-It-Yourself-Prenup,” but get a lawyer to really advise you about your own state. It is a great idea to get a template online, so you and your fiancée can start the conversations WAY before the wedding.
Suppose You Are Too Chicken To Do This Before The Marriage?
You can create a postnup agreement after the marriage. Postnups are basically the same as prenups and should layout, which assets go where in the event of death or divorce. However, some states view postnups differently if they are challenged in a divorce, so make sure that you consult an attorney.
Are There Other Ways To Protect Assets?
Yes, a revocable living trust can ensure that certain property or income is protected and can be given to someone other than your spouse. You can even retain separate bank and investment accounts and keep real estate in your own name. Your will can designate to whom you want your assets to go. Now that same-sex marriages are recognized, we don’t have to worry about the old and horrible circumstances that used to take place.
What Can Happen If You Just Decide To Cohabitate And Not Marry?
I won’t use her name, but she is a dear friend who decided to live with her boyfriend. They were deeply in love and both had been married before; he a widower and she a divorcee. They felt that there was “no need” to get married, because my friend enjoyed a close relationship with her boyfriends’ daughter. My friend was confident that her love would take care of her. He tragically died. On the way back from the funeral, his daughter had “her home” padlocked, not allowing my friend to enter. The lawsuits are still going on, four years later. Do not assume that you should only live by your heart. Living and loving someone has real business implications as well.
Parents – Help Your Kids With The Conversation
If you are young and come from families who have assets, I think that parents should be the ones to initiate the prenup conversation, because it is their assets that are being protected. It also takes the onus off the child. Don’t frighten or threaten the fiancée; just explain that your goal is to protect your child in the eventuality that circumstances beyond anyone’s control cause the marriage not to work. As he or she is gasping for air, explain that you love them and don’t anticipate any problems, but your job as a parent is to do this. Then, hand them the agreement!
Believe me, I know that it’s hard to ask for both a hand in marriage and one to sign the prenup! But, do it.