Prenuptial Agreements 101

Submitted by SharpMan Editorial Team on Sunday 10th October 2010
In this article
  • The facts on prenuptial agreements.
  • The pros and cons of the "pre-nupt" game.
  • Getting legally binding pre-nupts on the cheap.
Prenuptial Agreements 101

In a perfect world, all SharpCouples would marry and live happily ever after. Then SharpMen could simply focus on home decorating tips, fun family vacation sites, and creative ideas for your 50th wedding anniversary. Unfortunately, statistics show that only about 50 percent of marriages ever make it to "ever after." The other half end up somewhere between happy and hateful. With this in mind, we’ve decided to tackle the uncomfortable and tricky world of prenuptial agreements in hopes that none of our SharpReaders ever need to put one to use. Pass it along to a buddy who needs it — because whether we like it or not, the statistics don’t lie…

This article is designed to give SharpMen the 411 on what prenuptial agreements are and how to get them. For the SharpMan guide to broaching the subject of a prenuptial agreement with your SharpWoman, check out Sharp Ways to Bring Up the Prenuptial Agreement in next week’s issue of SharpMan.com.

What is a Prenuptial Agreement?

Whether or not you believe that it’s romantic to think about it this way, marriage is essentially a legal contract between two people. With regard to your property, the provisions of your marriage contract are governed by the laws of the state in which you live — and these laws determine how assets will be divided in case you divorce — unless you and your spouse decide you want to write your own marriage contract instead. When you write your own marriage contract, it’s called a prenuptial agreement.

After all, the frustrations of a divorce can be tremendous. The greatest problem in most cases is deciding how to divide your property and money. A few minutes of planning upfront can save you exhaustive hours, headaches, and financial burden. If you’d prefer your assets to be divided differently than what the law dictates, a prenuptial agreement is something you might want to consider.

Who Needs A Prenuptial Agreement?

"Pre-nupts" have been gaining in popularity over the last 10-20 years. Why? Up until the 1960s, most couples married young with visions of building a life together from the bottom up. Typically, neither party brought much property to the union. In contrast, today’s young Americans are waiting longer to get married, instead focusing on their careers, accumulating property and financial worth. Also, with rising divorce rates comes an increase in second marriages that often involve children from various marriages. Many individuals want to ensure that their assets remain with their own children in the event of divorce or death.

Consider the following points to determine whether a prenuptial agreement is for you:

  • Do you have children from a previous marriage for whom you’d like to protect assets or future inheritance?
  • Are you responsible for the upkeep of other family members, such as elderly parents or a disabled sibling?
  • Are you the owner of or partner in a business? (In the event the marriage terminates, your spouse may have a claim to part of the business.)
  • Will you inherit assets from your family that you would prefer to have remain in the family (not shared with the spouse) in the event of your divorce or death?
  • Will one of you bring substantially more assets to the marriage, such as a home, pension or financial investments?
  • Will your future spouse be giving up her career or acting primarily as support for you in your career or business as part of the marriage, and if so, what will be her compensation for doing so if the marriage ends?
  • Do you or your fiancée have debts that you wouldn’t like the other to be responsible for?
  • Will you or your spouse be supporting the other through college or schooling likely to lead to a lucrative line of work?
  • Do you foresee a large increase in future income, such as your business growing or you being a first-round draft pick for the Lakers?

Depending on your answers to these questions, a prenuptial agreement may help you protect existing and forthcoming assets from an ill-fated union.

How Does a Prenuptial Agreement Work?

Prenuptial agreements accomplish three basic things:

  1. They keep property separate.
  2. They keep debt separate.
  3. They allow couples to set terms for spousal support.

It is important to realize that a pre-nupt only applies to property. You cannot contract with your spouse to provide sex every night, cook, clean, or in any way enslave each other.

A pre-nupt can also allow for the waiver of spousal support. Some may provide for specific spousal payment agreements (for instance, that the wife will receive $2000 a month), but due to inflation and other factors specific spousal payment agreements are difficult to uphold in court and are actually prohibited in most states.

The process for creating a prenuptial agreement is fairly simple. You and your SharpWoman decide what works for you and what stays with whom in the event your marriage doesn’t work out. The deal you strike will generally be respected by the law, but remember, this is a legal contract to which American contract law applies, and a divorce court can and will overturn you private agreement if it finds that:

  1. The agreement is likely to promote divorce — the contract gives one or both parties a monetary incentive to leave.
  2. The agreement was written with the intention of divorce.
  3. The agreement was created unfairly — one of the parties was coerced into signing the contract.

How to Get a Pre-nupt — on the Cheap.

The law is constantly changing regarding what makes a prenuptial agreement legal and binding. Ideally, you and your fiancée should design an agreement that works for you both and each have it reviewed by a separate attorney. Unfortunately, for many couples the costs of an attorney can make this whole process prohibitive. Depending on the deal you strike, pre-nupts can take several weeks or more to draft and can run you anywhere from $500 to $5000 in legal fees.

For this reason, more and more couples are turning to the world of online legal services. Although many services currently offer wills and other contracts online, only a handful offer prenuptial contracts for all 50 states. Those that do make it cheap, easy and fast to document the decisions you and your SharpWoman have made and ensure that these decisions comport with your local laws. One company, LegalZoom, makes getting your pre-nupt a breeze. You simply answer a few questions online in order to describe the bargain you’ve struck and the property at issue. That’s it. Forty-eight hours later LegalZoom sends out your completed document ready for your signature. Cheap, easy and fast. Of course, it is important to note that if either of you has questions about the agreement, you should seek the advice of an attorney before signing.

Note: Prenuptial law varies from state to state. If you do not use an attorney or service like LegalZoom, make sure you know the specific laws of your state regarding your property rights.

For more information on prenuptial agreements, including tips for broaching the subject with your SharpWoman, check out next week’s Sharp Ways to Bring Up the Prenuptial Agreement.

Pros and Cons of a Prenuptial Agreement

Pros:

  • Protects personal and business assets accumulated prior to and during marriage.
  • Allows you and your spouse to agree in advance on the division of assets acquired during the marriage.
  • Protects assets that you’d want to leave for your children or other family members.
  • Streamlines divorce proceedings and helps you avoid nasty courtroom battles over division of property and alimony.
  • Helps both spouses clearly understand, in advance, what the financial expectations of the marriage are.
  • Prenuptial agreements can be changed as circumstances change.

Cons:

  • Many view contracts as unromantic.
  • Can give your partner the impression that you don’t trust her.
  • Can give your partner the impression that you’re already figuring out how to get rid of her.
  • Negative connotations of mixing love and money.
  • Brings up unpleasant emotional issues and possible resentment.
  • Emotional consequences of starting off the marriage — anticipated to be lifetime commitment — by trying to determine out how it’s going to end.
This article last updated on Sunday 10th October 2010
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