There is a reason that when you watch a romance on the big screen, a couple never seals their love with a kiss and then suggests that they draw up a prenuptial agreement.
Prince Charming and Snow White didn’t do it. Ariel and Prince Eric had no prenup. If you’re in love and planning on marrying somebody until death do you part, a prenup sounds like a terrible idea.
But prenups exist for a reason – to protect an individual’s assets in case of a divorce – and some couples do get them. So for the sake of argument, is a prenup a good idea? Should you ask the man or woman you’re planning on marrying for a prenup – or save some time and just break up now?
Read on for answers to all your questions about prenups.
What Is a Prenup?
“A prenuptial agreement is a contract that couples sign before they marry to designate how their assets will be divided in the case of divorce or one party’s death. It may also provide provisions or waivers of a spouse’s right to receive alimony or spousal support,” says Arthur Ettinger, partner and co-chair of the matrimonial and family law group at Greenspoon Marder’s New York City office.
According to Ettinger, it’s a misconception that only the rich get a prenup.
“Wealthy or not, couples may want to clarify their financial rights and responsibilities during marriage and to avoid costly litigation in the event the marriage goes south,” Ettinger says. “As we all know, the divorce process can easily be lengthy and costly. A negotiated prenup can streamline the divorce process, making it easier on both parties, emotionally and financially.”
Reasons to Get a Prenup
First of all, if you’re thinking that you may not need a prenup, you may be right. While attorneys like Ettinger can make an argument that every couple would be better off with one, you can definitely make the case, too, that if you’re both just starting out in life, and neither of you have accumulated much wealth, that you don’t need to have a prenup. If you wind up divorcing someday, you’ll just split everything as fairly as possible, since the wealth you collect will be something you both contributed to during the marriage.
But some couples should be strongly advised to consider getting one, according to Peter Mott, an attorney and partner with Twomey, Latham, Shea, Kelley, Dubin & Quartararo, LLP, a law firm with offices throughout the state of New York.
What type of couples? Well, you should be leaning on the side of prenups if:
One of you has a lot to lose in a divorce. “For first marriages, I find that such a discussion (about prenups) is most acceptable when one party has considerably more assets than the other party and usually when they are family-related assets,” Mott says.
He offers the examples of one individual being the owner of a family business – or maybe one of you has already inherited a family home.
“In these instances, I find the other party generally accepts the concept that those types of assets should not be shared in a potential divorce case,” Mott says.
Both of you have a lot to lose in a divorce. “If parties are marrying for the first time later in life, and they both have accumulated their own assets before marriage, it is more acceptable by both parties that they would want to keep their assets separate,” Mott says.
You’re on your second – or third or fourth – marriage. “Anyone who has already gone through a divorce should not hesitate to discuss a prenuptial agreement,” Mott says.
For obvious reasons. You know that it’s more than possible that there could be another divorce in your future, and you want to make sure you come through it somewhat financially intact.
One or both of you have children. “A prenup can codify each party’s inheritance rights to protect the children’s rights to assets accumulated prior to the marriage,” Ettinger says. “Without a prenup, a surviving spouse might have the right to claim a large portion of the other spouse’s property, regardless of the length of the marriage, leaving much less for the children.”
How Do You Get a Prenup?
The process is pretty much what you would think. You can go to a lawyer and hash out a prenuptial agreement at your attorney’s office, or you can create a prenup with a software program.
If you go the lawyer route, it can take anywhere from three months to six months and even a year, if it involves two people with a lot of assets to protect, to put together a solid prenup, according to Bruce Givner, a tax attorney with KFB Law Group in Los Angeles who has worked with a lot of divorced clients on community property issues.
As for how the prenup process unfolds, Givner says, “In terms of timing, one spouse interviews and hires a lawyer. Then the other one does. That easily takes a month. Then the lawyer who will prepare the draft takes a month to do so. The other lawyer takes a month to review it, make comments on it and meet with his or her client. Then the negotiations begin. And they can be brutal.”
Some of the topics you might want to address with your attorney – or make sure are covered on a prenuptial agreement that you forge with a legal website – include:
Debt. If one of you are coming into the marriage with a ton of debt, and the marriage ends, and you still haven’t paid all of the debt off, who is responsible for paying that?
Property. If one person is coming into the marriage with a house, what happens to the home if you two split up?
Inheritances. If you inherit some priceless artifacts – or maybe they aren’t worth much but are priceless to you – do you get to keep them after a divorce?
Spousal support. Also known as alimony. You may want to discuss that – although it’s a difficult conversation to get into the weeds about what you’ll pay in a divorce when you haven’t even said “I do.”
One topic to not discuss, say Mott and Ettinger: custody arrangements involving any children you two might have. It wouldn’t be enforceable in a prenup, and courts would decide that if the decision someday needs to be made.
How Much Does a Prenup Cost?
The legal advice website Avvo.com suggests that you’ll likely pay $600 to $800 for an attorney to draft a prenup. You can certainly pay much more. Generally, the more money you have to protect, and the more complicated your and your beloved’s finances are, the more you will spend on a prenup.
Is It Possible to DIY a Prenup?
Sure, but that doesn’t mean you should. Ettinger says that if you were to divorce, and you needed to use that prenup, it’ll be much more likely to work the way it’s supposed to if attorneys had a say in it.
“If, in fact, one spouse can demonstrate that he or she was coerced or pressured to sign a prenup, didn’t understand precisely what he or she was agreeing to or if a provision is proven to be unconscionable and grossly unfair to one party, the prenup likely won’t hold up in court,” Ettinger says.
Mott agrees that you may be taking a chance if you compose a prenup completely on your own and don’t get an attorney involved, at least near the end. He says that in his state “there are certain procedural requirements for a prenuptial agreement to be considered legal under New York state law and, if the parties do not know those procedural niceties, then they proceed at their own risk, just like when I see that people draw up their own will and have it notarized, but don’t know that there is a New York requirement for two witnesses to witness a will, not just a notary.”
Putting together a prenup, with or without a lawyer, isn’t easy, and Givner concedes, “Adding a premarital agreement to your relationship is possibly the single most unromantic thing you can do.”
That doesn’t mean you shouldn’t do it – but it’s important, before you bring up the topic, to realize that it’s a contract you’ll draw up that may be later fraught with emotion.
Of course, if you get through the prenup, you may find your relationship is stronger than ever. That said, Givner’s advice, if you decide that you should get a prenup, “is to not set the wedding date until you have completed the premarital agreement.”