Prenuptial Agreements – Should You Have One?

Most people view “prenuptial agreements” or “pre-nups” as distasteful or as a sign of distrust between a couple planning to get married. There’s always the connotation that this piece of paper is insurance when the couple’s “happily ever after” take a turn into a battle in the divorce court; and that it is for the truly wealthy and celebrities only.

Will you put car, home, health and life insurance in the same light? I don’t think so. Prenuptial agreements are similar to these insurances – no one anticipates an accident, fire, major sickness, death or divorce. We certainly do not want to talk about it, but it can happen and sometimes it does happen to us when we least expected; and it is best to be prepared.

Pre-nups is a protection, just like car or life insurance. It may not protect you from every conceivable problem, but if properly drafted, it will certainly limit them. Pre-nups are not prelude to divorces. Any pre-nup which promotes divorce is unenforceable. Yes, a pre-nup is a legal document, just like your marriage certificate. Although you do not need a legal counsel for your marriage certificate, it is best to consult a competent counsel for your prenups.

Before you run to your legal counsel, let me summarize what is the point of prenups. Then you decide if you need it:

• Protection of property. This includes waiving community property rights (for those states that have them), such as real estates, businesses, retirement plans and intellectual properties.
• Providing for (or not) spousal support.
• Preservation of separate property and debt. This ensures that what is yours is yours and that you will not inherit your spouse’s debt in the event that he/she forfeits payment.

Do you get the feeling that pre-nups is about money or assets and debt or liabilities? If so, you are right. What makes pre-nups difficult to talk about before the marriage is that most couples do not want to discuss it. But, guess what the most common topic that couples fight about? You are right – money. It is best to be frank and open about both your finances up front. Then there will be fewer things to worry about later.

There are a lot of things that cannot go into pre-nups. Even if they are stated in the pre-nup, they are not enforceable. These are the following:

• Limitations on child support
• Custody
• Religion
• Promotion of divorce
• Damages for cheating

To get to know more about prenuptial agreement, I recommend Arlene Dubin’s book Prenups for Lovers: A Romantic Guide to Prenuptial Agreements.

In the words of the author, a pre-nup is “… a private agreement between a couple contemplating marriage.  The couple arranges, in advance, financial matters in the event of death …”.  Prenuptial agreements are no longer exclusively for the rich and famous.  They are increasing becoming commonplace for those not so rich and famous, too.