Prenup: 5 ways to protect your assets and your marriage

June 8, 2011

Safeguarding against the end of a marriage, before it even begins, certainly isn’t romantic. But for wealthy families or those with substantial assets, prenuptial agreements are fast becoming as standard as the purchase of a white wedding dress.

Seventy-three percent of divorce lawyers say they saw an increase in prenups over the past five years, with 52 percent citing women as the initiating party, according to a survey conducted last year by the American Academy of Matrimonial Lawyers (AAML).

Linda Lea Viken, president of AAML, believes the popularity of prenups has exploded post-recession. “I think people are becoming more concerned with debt coming into a marriage and there has been a uptick in addressing that in prenuptial agreements.”

A prenup may seem like an iron-clad way to protect your assets, but ignoring certain considerations may do more harm to your impending marriage than the inherent I-don’t-trust-you nature of the agreement. Here are some tips on how to ensure you’re able to sign on the dotted line, and walk down the aisle, with your financial future intact.

Put together the right team
Hiring an attorney to represent your interests is integral to drafting and negotiating an agreement, regardless of what side of the wealth wagon you’re on.

“One problem that people come up against is they think one person can do the drafting for both of them,” says Raquel Sefton, head of the family law department at Sideman & Bancroft LLP in San Francisco, California.

“Couples think this is really simple — we’re getting married, we’ll do this together and it will be fine. From a legal perspective, that’s an inherent conflict of interest because how can that person be representing both parties when their interests may be adverse?”

In addition to legal counsel, draw from your personal pool of resources. Have a financial adviser you regularly work with? Bring them into the process. Seek advice from a therapist, clergyperson, friend or relative who may have experience with negotiations.

Know your state
Regardless of how savvy you are in business, matrimonial law is complicated, varies from state to state and can have unforeseen effects on your finances. “We can’t expect people who get married to understand how those rules are going to apply to them going forward. So much of what I try to do as a practitioner, and what the prenup should do, is educate both parties. What are the ground rules and do you want to change them?” says Sefton.

Assets are generally classified as either marital or non-marital depending on if you live in a community-property or equitable-distribution state. Your business may be deemed non-marital, but the growth that occurred during the marriage can be considered a marital asset. In some states, gifts and inherited property are non-marital but can be included or excluded in the marriage property as the court deems appropriate.

Keep emotions out of it
No one wants to think about divorce, death and who gets what when planning a wedding, but a prenup can serve as your financial constitution for the rest of your marriage.

“When handled in the correct way, the couple has an opportunity to to discuss these issues ahead of time, hopefully in a non-emotional way. If it’s a voluntary discussion and there aren’t family members hovering over, pushing negotiations, than it’s much more likely that it will be a positive document rather than a negative one,” says Cicily Maton, founder of Aequus Wealth Management Resources.

No marriage is immune from financial decisions. If you’re holding back on having a difficult financial discussion now, what will your future dialogue look like?

Be sure you understand the fine print
Don’t be fooled: lifestyle clauses aren’t just for celebrities. But not all red flags are as obvious as a weight-gain clause. Pre-determined issues relating to children, an agreement that is promotive of divorce or rewards good behavior, should send a warning. If you’re feeling squeamish about the underlying moral-nature of a clause, listen to your gut and hash it out.

“In California, you can’t contract away your obligation to support your child or your right to get child support. Absolutely can’t do it. If someone is asking you to do it, you have to ask yourself why because it’s against public policy,” Sefton says.

If there is a provision for no marital property, don’t sign the agreement, Viken recommends. “You will not want to agree that you receive nothing in the event of a death or divorce and you will want to look carefully at provisions relating to things such as retirement that is accrued during the marriage,” she says.

Don’t underestimate your worth
Stability and companionship are like a warm blanket, but not worth losing your economic power over. What are you giving up to raise children? Are you putting your career on hold to help your wife launch her startup?

“I have older clients who come to me and say they can’t believe they gave up the best years of their life for a dirtbag who is now with somebody else,” Sefton says. “I’ve seen wonderfully bright and talented women who thought they were doing the right thing by staying home and raising the kids and then woke up 20 years later to realize their spouse has a great career but they don’t.”

If you’re giving up your livlihood, you may want to think twice about waiving spousal support.  “You’re really kind of a lamb out there if something were to happen to you. You’ve given up your job and you may have problems getting back into the work force. Depending on what you’ve agreed to in the prenup, you can be in really sad shape,” says Jay Frank, senior matrimonial lawyer with Chicago law firm Aronberg Goldgehn Davis & Garmisa.

Be confident in your own power and what you’re bringing to the marriage, whether you have more wealth or less compared to your partner. It’s part of an attorney’s job to take the inherently one-sided nature of prenuptial negotiations and align your goals with that of your future spouse.

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