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Should You Be Afraid of a Prenup?

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Danielle Hoston: With wedding season quickly approaching and new high-profile divorces every other day, I thought it was high time we discuss prenuptial agreements in the momlogic forum. This week, I consulted with a very prominent family law attorney in Beverly Hills to help me answer the question: Should we be afraid of prenups?

Prenuptial Agreement: n. a written contract between two people who are about to marry, setting out the terms of ownership of existing and later acquired assets, treatment of future earnings, control of the property of each, and potential division if the marriage is later dissolved or if a spouse dies.

wedding cake couple with lawyer

Please keep in mind that these are general concepts and that the laws in your state could affect the answers to these questions because the laws in some states and countries are extremely different from others.

Who should get a prenup? The easiest way to answer that question is to explain who should NOT get a prenup. If you have no assets, don't anticipate high earnings or a significant inheritance, and intend for your marriage to be a true partnership where all income and assets are split equally, then you may not need a prenup. Also, if you spend what you make, then there is nothing to discuss. However, it is important to consider that all marriages end. They end by either death or divorce. Would you rather make the decision about how your assets will be split yourselves under these circumstances or have the state decide?

What subjects should be included in a prenup? At a minimum, you want to state what rights each party has to the existing assets, including increase in value and income from premarital assets. You should also state what rights each will have to assets acquired during the marriage from earnings and/or gifts and inheritances. You may or may not want to state how to share ordinary living expenses, obligations from a prior marriage, and/or existing child support, and whether or not it will be paid from existing assets or earnings obtained during the marriage.

What else can prenups address besides money? Prenups can address non-economic issues. Examples of this would include religion for unborn children, how medical treatments will be addressed in the event of illness, where the family will live, penalties for bad conduct, etc. Frequently, however, a court will not enforce this part of the agreement if contested.

Are prenups more necessary in 2nd marriages or if there are previous children? Yes! Prenups offer a wonderful benefit to spouses with children from previous relationships by avoiding a later disagreement in court. Prenups could separate assets owned before the marriage and define how they are to be distributed in the event of an untimely death. Without a prenup, a surviving spouse could claim the assets previously owned by the deceased as "community property," claim ownership of 50%, and most likely end up in probate court in conflict with the children from the prior relationship.

I'll be honest ... I once had an ex-boyfriend who gave me months (yes ... months!) of grief over a cell phone bill. I can't even imagine how difficult a divorce could be. I've always been in favor of prenups for the simple reason that breakups of any kind are usually messy and, with today's divorce rates, it would be foolish to believe that a divorce could "never happen to me." The most important piece of advice I learned during my conversation with the family law attorney is that it is best to have these discussions before the marriage. Both parties should consider all of the possibilities that prenups prepare for. Make a joint decision about how to handle these possibilities and then decide whether or not to get a prenup. Making these decisions while you are in love has to be more pleasant (and a whole lot less expensive) than discussing them during a divorce, but it's still never easy.

Would you sign or demand that your spouse sign a prenup? Should assets acquired during the marriage always be split evenly? Should assets owned before marriage always remain separate? Stay tuned for Part 2 tomorrow where I will discuss POST-NUPS and how both of these agreements are nullified!



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8 comments so far | Post a comment now
TLC May 18, 2009, 1:31 PM

I personally don’t believe in them. That may sound naive or financially irresponsible to some, but we’re either taking the leap, or we’re not. If you don’t trust me or what I may be capable of, don’t marry me.
My first husband wanted a prenup, which was laughable, seeing as he had NOTHING to lose. He waited until two months before the wedding, and, while I was three months pregnant, to ask me. I felt trapped and heartbroken. Truth be told, had I not been pregnant, I would not have signed his stupid prenup, or gotten married.
Why plan for the divorce, for the worst? Why not plan for, and invest in, a long, healthy, happy marriage instead. What’s the point of saying “I do , until death do us part” if you’ve already signed a legal agreement saying “but, just in case”……

Miranda May 18, 2009, 5:30 PM

I don’t mind prenups if they are in “no-fault” states (pretty much meaning one partner can get a divorce for no reason and get EVERYTHING), especially if there is a disparity between incomes or a second marriage. Fortunately, I live in a state (NY) where divorces are only granted if both parties agree to the terms and conditions (meaning they have to agree on dividing everything up before it even gets to a courtroom) or in extreme cases (physical abuse, abandonment for greater than 12 months, etc.).
I also find it funny that a prenup is void in all states if it mentions sex because it is then considered solicitation.

DD May 18, 2009, 6:33 PM

Ha! Good info, Miranda! “No-fault” states (like California) also eliminate the ability to financially penalize a spouse for marriage wrong-doing (i.e. cheating).

Check out tomorrow’s post about post-nups in case you ever move away from New York!

Triniman76 May 18, 2009, 9:59 PM

I can make an arguement for pre-nups in some cases ie. professional athlete/entertainer marrying a “waitress” studying to be an “actress” or Oprah marrying me for arguements sake. Hahaha. The fact of the matter is… people get divorced and it’s naive to think that it could NEVER happen to you. I think that most couples when they decide to enter into a marriage have the best intentions, but nevertheless the divorce rate in the US is over 50%.

Nicole May 18, 2009, 11:26 PM

Here is a question for people that have a big problem with prenups - do you have homeowners insurance? Auto insurance? Nobody buys a house or drives a car expecting something bad to happen, but you don’t hear people saying “I don’t need to get that, it will never happen to me, I’m a really safe driver!” Replace that “safe driver” with “really in love” and it becomes a whole different ballgame. If you are planning on staying married forever (and most people do), then what is the harm in a piece of paper that says what will happen if you don’t? If that is what it takes to make your significant other feel truly comfortable and at ease, then I would not have a problem.

tanya EVANS May 18, 2009, 11:43 PM

I would have no problem with a prenump, I guess it would all depend on if my hubby wanted me to stay home and tend to kids and him 24/7, give up my work that I love so much etc!!! I believe whatever you had before you get married should remain separate… You hope you never divorce:( but if you do, I feel the amount should not be half… But fair… I would include a “promise to be fair should we ever divorce” claus in mine. :) Oh and a cheating claus”You cheat, I take ALL”

Tanya

Southeast 619 May 20, 2009, 6:51 PM

With all these gold diggers out there these days its better safe then sorry.

Xpcsyczm June 26, 2009, 7:32 AM

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