Should I Get A Prenup?

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If I had a nickel for every time I heard, “we don’t need a prenup because we won’t ever get divorced” or “we don’t need a prenup because we don’t have anything to protect”. Both of these statements cause great pain to my divorce attorney ears since almost on a daily basis I get calls from individuals seeking a divorce attorney. Also, the fact that you do not have money is not necessarily a reason to refrain from getting a prenuptial agreement.

I am completely aware of the fact that following a proposal, asking your love to enter into a prenup is not the most romantic of all propositions. However, it is a good idea. I’m not quite sure why prenuptials are associated with feelings of mistrust or that the request is as a result of your opinions of each other. Most often I hear something like, “I guess he/she does not trust me”. However, it is important to note that requesting a prenup almost always has nothing to do with trust. When you are in love and newly engaged, of course you never think anything will come between the two of you. But, and this is a BIG BUT, statistics show that an astounding 51% of the population is divorced. I am sure that roughly 95% of those couples would have never imagined they would be getting a divorce when they got engaged and especially when they were married.

Often enough divorces occur because of financial problems. With the divorce rate being so high, it is wise to take the time into planning your financial future. Getting a prenup forces couples to discuss important money issues, goals, and plans early on. For example, if one fiancé wants to continue their higher education and the couple will be forced to take out a loan. Who will be responsible for this debt in case of divorce. Will one spouse need to be the co-signer of the other. There are financial implications to all of these decisions that most spouses do not confront until it is too late and then fight about for years during a divorce. It is important to realize that entering into a marriage is entering into a legal contract and should be treated similarly.

As a wise man once said, “Life is like a box of chocolates, you never know what you are going to get!” With an attorney to draft a prenuptial agreement, you can protect your separate property, support your estate plan, clarify special agreements, establish procedures and ground rules for deciding future issues, define what property is marital and separate property, and most importantly reduce conflicts and ultimately save money if you must get a divorce.  

A prenuptial agreement is a contract entered into in contemplation of marriage. The agreement often serves the interests of both parties, rather than only one party as is commonly perceived. In New York and New Jersey, without a prenuptial agreement the court will divide the property in a way that is considered equitable (fair), which may be dividing it down the middle, but not necessarily.

If you reside in New York or New Jersey, you should get a prenuptial agreement if:

  • You wish to designate specific assets as separate property that will remain separate property always, even if commingled after marriage, and certain assets as marital property.
  • Establish that one partner is responsible for the financial support of the other during the marriage and the parameters for financial spousal support in case of divorce.
  • Establish each partner’s liability for marital debt or pre-marital separate debt.
  • Memorialize any agreements with regard to any other financial aspects of the marriage or those with regard to support.

Note: You may not address issues of child custody or child support in a prenuptial agreement since these are reviewed or decided by the court in the best interest of the child(ren).

Where as in the past prenuptial agreements used to be considered controversial or taboo, in recent years more and more millennials have been requesting them. They attribute this increase in prenuptial agreements to the fact that millennials are getting married later than previous generations and are able to build up assets, debts, and financial portfolios of their own. Also, many baby boomers want to secure the money they worked for to remain in the family in case one of their children gets divorced. Finally, the rise in prenuptial agreements may be a result of the changing role of women in the workforce. Whereas prenuptial agreements of the past protected the monied spouse, these days more often than not the agreement is a team effort.

Why enter into a prenuptial agreement even if you have nothing to protect:

What if one of you opens up a business. Who will be liable for debt? How will you share the profits of such a business? Will one of you take time off to raise children, enabling the other to grow the business and support the family? Is one of you a teacher or becoming a teacher and will eventually have a pension to divide and discuss? Will you both receive stock options during your marriage? Will either of you receive an inheritance during the marriage?

Life is completely unpredictable and it only behooves a young couple to determine how to deal with such things before they are angry at each other and unable to think clearly.

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