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Moonlight glints off the freshly fallen snow on Christmas Eve. Lights twinkle on the tree. On New Year’s Eve, champagne sparkles in crystal glasses. There’s one more thing that glints, twinkles, and sparkles this time of year: engagement rings. Christmas and New Year’s Eve are some of the most popular times to get engaged, as is Valentine’s Day, which is just around the corner. All these engagements can only mean one thing: it’s time to talk about prenuptial agreements.
We know, we know. At the most romantic moment of your life, the last thing you want to do is talk about legal documents, especially documents that contemplate the possibility of a divorce or death. But at some point between your engagement and your wedding day, you really should discuss having a prenup with your future spouse.
If you’re like most engaged couples, the first words out of your mouth are something like, “Why would we need a prenup? We’re young, and neither of us has any assets to speak of. Besides, we’re never going to get divorced.” If you’re embarking on a marriage later in life, that refrain might sound more like, “Why would we need a prenup? We each have our own separate assets and we know what belongs to each of us. Besides, we’re never going to get divorced.”
Not getting divorced is a good goal. But a goal, without a plan, is just a wish. And as most people know, for about half of married couples, that wish doesn’t come true. Read on to learn why you might want a prenuptial agreement, even if you think you don’t need one.
What is a prenuptial agreement? Essentially, a prenup is an agreement signed in contemplation of marriage. It addresses the couple’s respective rights and responsibilities, primarily regarding financial matters, for during the marriage, and after it ends, whether by divorce or death.
There are a couple of good reasons to get a prenuptial agreement (also called a premarital agreement) regardless of your age or level of wealth. The first has nothing to do with divorce. A prenuptial agreement helps future spouses “get on the same page,” financially speaking. You will both understand what you own and how you think about financial issues, including building wealth and managing debt. That is an important foundation for a marriage that many people don’t have.
But the second important reason to have a prenup is that life changes, and your circumstances will not always be as they are now. A prenuptial agreement can reflect your values so that neither of you is punished financially if you divorce after your life situation has changed.
Consider the situation of a couple who met in college and became engaged to each other a year after graduation. Both had good jobs: she with a prestigious large company with great benefits, he with a smaller firm that offered the prospect of advancement.
Because they both anticipated long and successful careers and were on equal footing financially, they didn’t see the need for a prenup. What they didn’t take into account was the fact that life might look very different in a few years, and, in fact, it did. Five years after the wedding, the couple had three year old twin girls and a newborn son. The wife was burned out from juggling the demands of a corporate job and the needs of her young family. The husband had risen in his firm, and they decided that his growing income would allow the wife to stay at home with the children.
Fast forward another five years, and the couple has decided to divorce. A decade earlier, they both had little in tangible assets but roughly equal earning capacity. In the five years since the birth of their son, the husband had become an equity partner in his growing firm and his income had doubled. The wife, on the other hand, was only able to take on freelance consulting work that she could do from home, and was earning less than 20% of the husband’s income.
As things played out, the husband walked away from the marriage with a successful career and high income. The wife walked away with primary custody of the three children and a five-year gap on her resume. She got child support for the children, and a small amount of alimony to help her transition back into full-time work. Unfortunately, her career, savings, and earning capacity have not yet recovered from her time out of the workforce.
Had the couple had a premarital agreement, they could have agreed that if one spouse made career sacrifices in support of the family or the other spouse’s career, those sacrifices would be compensated in a divorce. Unfortunately for the wife, they failed to think about a future that looked significantly different than the moment they were in.
The possibility of one spouse making career sacrifices to stay home with children is not the only reason to make a prenup. You should also consider a prenuptial agreement if:
A prenuptial agreement gives you and your future spouse the opportunity to agree how you would like to handle certain contingencies while they are still hypothetical. If and when those situations do arise, having a previous agreement will make them much easier to navigate. If you resolve issues before they arise, when hearts are calm and heads are clear, you may even avoid conflicts that otherwise could lead to divorce.
As an engaged couple, you will share many things, but one thing you should not share is a prenuptial agreement lawyer. Each of you should have your own attorney to look out for your best interests and advise you regarding contingencies you may not have considered.
You also should negotiate your prenup well in advance of your wedding. You want any agreement you make to be enforceable; a person who signs a prenup shortly before the wedding might be doing so under duress, which could make the agreement void.
If you are worried about how to raise the issue of getting a prenup with your intended spouse, remember this: almost half of couples who get married later get divorced. But many attorneys find that the percentage of divorces is much lower among their clients who took the time to make a prenuptial agreement. Failing to discuss issues doesn’t mean they don’t exist, and making a prenup could just be as much of an investment in your marriage as that sparkling ring.
To learn more about making a prenuptial agreement, we invite you to contact Strickler, Platnick & Hatfield to schedule a consultation.
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