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Basics of Prenuptial Agreements

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I’m about to get married in a few months and I’ve actually been asked, on multiple occasions, whether we plan on having a prenuptial agreement (technically a prenuptial accord) and the answer is No (and no I didn’t need to think about it :) ). We’re in love, we’re happy, we’re planning the rest of our lives together… but that’s exactly why now is the perfect time to discuss/negotiate and sign a prenuptial agreement (though we never really discuss the idea seriously, we just assumed we weren’t getting one).

Why?

Some would say that discussing a prenup is like preparing for failure (it’s a very emotional response and understandable) but then I would argue why does anyone by insurance? I’m not averse to the idea of getting a prenup, it’s just that I don’t see it as necessary and I don’t want to pay some lawyers my hard earned money for something I don’t feel is necessary. Would you pay a dentist to remove your wisdom teeth if they weren’t bothering you? Probably not.

Why Now?

Discussing a prenup doesn’t exactly jazz up relationships, especially when you’re in love (awww!), but right now, right before marriage, is the best time to talk about this sort of thing because now is when things are most cordial. You want to talk about and sign these agreements, like any other business contract, in the best of times because that’s when you and your partner will agree on something. Whether it’s a partnership for a new business venture or something smaller, like a house, having a written understanding of where each person is, what each person believes, and how things are to be resolved should it come to a mediator is crucial.

You Convinced Me! Now How?

Step 1: Agree
So, if you want to get a prenuptial agreement, or a prenup, here’s what you’ll need to do. (Remember, I am not a lawyer so always consult with one, this is just my interpretation from the readings I’ve found online) The first step is to just write down what you two believe in plain English. If you plan on a split where you each take what you brought in and split everything else afterwards, it helps to has those details now instead of when a high priced lawyer is introduced. You don’t need someone (or someones) in a suit sitting there while you draw up the basics of your agreement, you only need them to put it in that high priced legalese to make it stand up in court.

Step 2: Lawyerize It
Then get two matrimonial laywers, one for you and one for your partner, to draw up the specifics in a legal instrument. In some states, you need independent advisers to both sides or it could be see as unfair and nullify the agreement once you hit the battlefield. Lastly, be sure to revise it every couple of years to keep it current and to keep both party’s understandings in play. One of the revisions could be to do away with the prenuptial agreement entirely, so you want to revisit it every so often.

3 Useful Tips

Here are a few more tips about prenuptials I pulled from a Bankrate article on the subject:

  • You can’t waive rights to child support payments (it’s for the children, not for the partner anyway)
  • A will can’t supersede the prenuptial agreement if it’s stingier but it can if it is more generous. If the will gives more than the prenuptial, then it can stand. If it gives less, sorry, the prenuptial stands. This is why it’s important to revise the document, you don’t want a prenuptial from thirty years ago forcing your estate into probate instead of going to your partner (if that’s what you want).
  • Ensure it is signed in triplicate and three copies are made. One going to each party (bride, groom) and one to an independent party such as a lawyer or a safety deposit box.

So, what do you all think of prenups?

{ 19 comments, please add your thoughts now! }

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19 Responses to “Basics of Prenuptial Agreements”

  1. saladdin says:

    I read not long ago about the idea of marriage licenses having expiration dates. Say you want to try marriage for 1,3 or 5 years and after that time you are automatically un-married to do what you please. Kids kick in the child support clause.

    Kinda like Albert Pujols contract having a mutual option clause. Both sides have to agree to the contract extension.

    saladdin

  2. thomas says:

    people who “really” love each other get prenups to protect each other. What are the numbers on divorce 50% ???. I am sure that the majority of people getting married are in love and life is all roses, yet half of them end up divorced.
    CYA.

  3. Anonymous says:

    I think they are a good idea, because it can’t hurt to think about these things. No one wants to die either but we should still have a will.

    In fact, I think discussing and writing things down informally is a good idea even if you don’t really need to get one formally drawn up.

  4. MoneyNing says:

    I just can’t bring myself to even talking about it :) It’s fine if both parties are similar in wealth but it’s a very nasty thing to do if you are the side who “has more to lose” so to speak.

  5. MoneyNing says:

    btw jim, I’m guessing you watched the billionaire inside show on CNBC with Donald Trump?

  6. Nick says:

    A nice article describing why the divorce rate isn’t nearly as high as everyone thinks it is. It’s never been 50% and it isn’t likely to ever reach 50%. Oh, and the rate is actually decreasing (a trend which may or may not continue, but since trends were used to come up with the 50% estimate in the first place it is worth noting).

    http://www.nytimes.com/2005/04/19/health/19divo.html

    I can see the value of a pre-nup under certain situations, especially when the financial situations of the two people are drastically different before they get married, but in general if you feel like you need a pre-nup you probably shouldn’t be getting married in the first place.

  7. Patrick says:

    I never got a prenup and didn’t even consider it.

    What I’m trying to figure out is just what exactly the words on the window state in the picture. Not the “I just got Divorced,” I can read that quite well… ;)

  8. Nas says:

    It would be interesting if pre-nups were required by law. Then we could save quite a lot of tax money on court cases.

  9. Rob Carlson says:

    IANAL. This is what I recall of how it was explained to me by a lawyer friend during my engagement.

    In Maryland you leave with the assets you brought in, and typically share the proceeds of the assets of the union. If you entered into marriage with a house, car, retirement, etc. at a certain level, you would most likely leave with at least that.

    Then for assets after marriage, it’d probably be calculated 50/50 considering mortgage payments towards principal, assets purchased jointly, home improvements, contributions to joint accounts, each spouses’ retirement, etc. This assumes, I guess, that regardless of the amount of money each party brings in, they are both equal partners to the union.

    The prenup affects the contributions to those assets after marriage, so if you made $250k/yr and your partner made $25k/yr, you would probably want to designate a more reasonable (90/10) distribution of marital assets should you ever have to split them up.

    If you’re assuming you’re going to be a pretty evenly matched pair when factoring in financial and non-financial contributions to the marriage, its probably not worth the trouble.

  10. Charles says:

    I was just listening to an audio book. And the author says “We have contracts to protect us from people we don’t trust”. So having a prenup is a bad omen for two people who profess to love, protect, and share life together.

  11. Robert says:

    Thomas says you get a prenup to protect each other, but that’s not at all how it works. It protects YOU from the other person, but I think it’s at the cost of some trust and love. If you divorce, then it’s a self-fulfilling prophecy.

  12. Andrew says:

    The truth of the matter is that you just can’t know what will come down the road in the future. I’ve known people who have changed direction unexpectedly and it has taken a toll on every aspect of their life. In a situation like that I’m sure they were thinking everything was roses early on, but it is always better to be prepared.

    I’ve done the prenup conversation and dealt with the whole “You don’t trust me” issue. That can be a real pain, but I’d rather deal with that than give up everything I’ve worked so hard for to someone who isn’t willing to part amicably on pre-agreed terms. For a significant other to say they won’t sign is like a confession that they want to use you for whatever they can get and leave you broken and penniless. Maybe that sounds harsh, but you should be able to communicate openly with your significant other. If you can’t then you probably shouldn’t be getting married anyway, or at least not without a prenup. ;)

  13. 1000xZero says:

    I think everyone should have a prenup. Make it fair to both parters.

    It protects both partners. If either partner would not sign one then I would seriously think about not marrying that person. There is an ulterior motive there even if it is not a conscious one.

  14. Anonymous says:

    I think a basic pre-nup agreement is a good idea if someone in the relationship insists on one. It helps to organize a divorce. However; 10, 15, 20 years on down the road, your lives are so changed and intertwined. Each person has given so much to the other, priceless things, that a prenup should be void after a specified number of years.
    The conversation which most people should have before they are married is how do they want to live their married lives together-financially, emotionally, physically, everything. A person can do a lot more damage in a marriage then they can do after one, if this topic isn’t discussed and understood. Open conversation and an understanding of how each wants to spend their married lives together should be discussed before marriage. If you do not want to go into a union, get ahead in lives together, and live as a team with your partner, then what is the point? You should get married at all.
    You can always earn money, it will always be there. But your emotions and your mind are what will truly be scarred and will affect you the most after a divorce.

  15. bb says:

    Seems like a no-brainer to me. Perhaps this kind of disussion would shed some light on the controvery re same sex marriage, in that the ‘marriage’ contract / pre-nuptial agreement specify the parties by name, not sex.

  16. mm says:

    Listening to all of these responses really helps. My girlfriend and I are getting married soon. I brought the premarital agreement up and she said she didn’t care then days later she went on to make negative comments to me about my trust in her. I explained that it had nothing to do with her and everything to do with the law. I was married for 6 years before and divorced on what seemed amicable terms. Like I said it was amicable( no cheating or anything like that) we just grew apart. We were civil but when it came to paperwork/court time I learned valuable lessons about how the state looks at divorce and what power the judge really has. My ex-wife quickly turned it into a hostile and contested situation overnight. All of the sudden my life and all that I had earned was put on the chopping block. Believe me folks, I worked hard to get where I have and seeing how my ex-wife turned from the sweet woman she was into a person that wanted “her fair share and then some” made me want insurance if I ever did this again.

  17. Hard Working Girl says:

    Thank you for the great insights. Tonight I mentioned to my fiance, that a simple prenup is available to down load and seems to eliminate anxiety since both of us have been through two divorces each. He huffed, ” I will sign anything you want me to! I have never taken anything from anyone before!”………..I explained that our relationship is two sided. There is our romantic love and a business partnership, also. We each own property and it would be nice to know that if he fell out of love with me, we both keep what we each brought into the relationship…..dead silence. ……We will see in the next coming days if there is reason to purchase a wedding gown or not.

  18. TM says:

    Everyone sees “prenup” and thinks divorce and marriage failure. The thing that is an absolute, in my opinion, is that if one of both of the people have a previous marraige with childern there must be a prenup for estate planning purposes. In this type of prenup you can leave the “what happens “if” we divorce” out tottaly. It is for the benifit of one or both previous families and is set up for “what happens when we “do” die”. Do you really want state laws to possibly disiherit your children or your to be spouses childern. Do you really want the courts to determine who gets what, we write wills for that. And if there is not a prenup for “what happens when we “do” die” state laws may preempt what you want your will to do.

    Even if you are deeply in love and believe you don’t need the “what happens “if” we divorce” prenup, I see no emotional liablity in discussing the “what happens when we “do” die” prenup. It is a total no brainer and lets your potential spouse know that not only do you care about them you care about your childern and their children.

  19. Karen says:

    As a young 20 year old with nothing in the bank or property it was easy to marry many years ago. A divorce several years later left me paying all the bills and nearly losing everything I had up to that point. Now in my retired years and considering marrying again I have bank accounts and property and worry about losing everything again unless I can protect what I have now. And yet I’m concerned about bringing up the topic of a prenup with my partner. Any suggestions?


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