Till Death or Divorce Do Us Part
By Heather Faucher | Posted on July 7, 2009 | Filed Under Prenups
Ask a blushing bride-to-be about the plans she’s busily making for her upcoming nuptials, and signing a prenuptial agreement probably isn’t in her top five. Okay–probably not on the list at all. Most people view being asked to sign a prenup by their future spouse akin to being asked to pick out a casket along with the engagement ring–a sign of impending doom for the marriage. Not to mention a decided lack of faith and trust. Sometimes, though, it really is better to be safe than sorry.
Think about it. Sometimes it’s hard to know exactly who you are as a person, much less know someone else inside and out. People often hold things back during the courtship period, whether intentionally or not. Even those who are completely honest can change as months and years go by. Sometimes people change and grow together as a couple–but sometimes they don’t. Tragedies happen that can break up marriages. Of course it’s a rotten idea to go into a marriage expecting it to end before it’s even begun. But it’s an even worse idea to take no precautions at all in case the worst does take place.
A prenuptial (also known as an antenuptial) agreement is a legal agreement signed by two people planning to enter into marriage. Most of them deal with relatively straightforward financial and legal issues should an unfortunate divorce take place. Some even make financial arrangements in the event of the death of one or both spouses. For instance, who gets what such as the house, stocks, bonds, retirement funds, or other marital assets. The biggest concern on most people’s minds, though, is making sure that property they bring in to the marriage remains theirs or their children’s should divorce or premature death occur.
Some prenups can also include items like custody arrangements, spousal support, or even what happens to the family pet. According to Lester Wallman, a partner in the Manhattan law firm of Wallman, Greenberg, Gasman and McKnight, and author of Cupid, Couples & Contracts: A Guide to Living Together, Prenuptial Agreements, and Divorce, an agreement can be specifically tailored to the couple’s needs and wants. Finances are generally the main focus, but even the seemingly most mundane or petty details can be included. “One client insisted the toilet seat be put down,” says Wallman. This example, while extreme, illustrates a point: anything and everything under the sun can go into a “prenup.” Keep in mind, however, that including somewhat bizarre clauses like that can often be legally murky and may not hold up in court. Additionally, just because you sign a prenup including custody arrangements for children, the family court judge is going to make his or her decision based on the “best interest of the child” doctrine and could counteract whatever agreement you made ahead of time.
For some reason, many people have the mistaken perception that prenups are only for the rich and/or famous, but that’s just not true. “Anyone in any economic bracket needs to talk about money issues. There are a lot of assumptions made otherwise,” says Jacqueline Rickard, a trained family mediator and the author of Complete Premarital Contracting: Loving Communication for Today’s Couples. Many people hash out issues such as how many children they want to have, where to live, who’s going to be the main breadwinner–or if both spouses will be equal breadwinners–but many neglect to discuss the number one cause of most marriage implosions. Money.
In the event you do decide to protect both you and your future spouse in the event of unexpected divorce, consulting an attorney is a definite must-do. “The very first thing you should do is to talk to your lawyer. I strongly recommend that this step be taken even before you talk to your intended about the idea,” says Curtis Bennett Ross, a Chicago CPA and attorney in private practice. “It is often the case that assets are not substantial, and it may be possible to protect those assets through other methods.” Doing this is not sneaky or deceitful–it’s just plain smart. And in a time when so many marriages end in divorce, if not financial ruin for one or both parties, being smart even when it comes to affairs of the heart is definitely the right thing to do.
Is a prenup something you need to consider? Find the documents you need here.
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Tags: Prenups, prenuptial agreements, prenuptials
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