If you’re a devotee of People and US Weekly—or you know someone who has gotten divorced—you’ve probably heard of the notorious prenup.
Part financial planning, part legal document and part romance-killer (or so say some people), a prenuptial agreement isn’t just for celebrities. It’s for anyone who likes to have stuff down in writing … before the divorce hits the fan.
We talked to LearnVest Planning Services certified financial planner™ Ellen Derrick and New York estate planning attorney Ann-Margaret Carrozza for their unbiased and expert opinions on the sensitive topic.
1. What is a prenup?
It’s a casual term for “prenuptial agreement” or an agreement you execute before getting married. In legal terms, “the most common purpose for a prenup is to determine who gets what in the event of a divorce,” Carrozza says.
If you get divorced, and you don’t have a prenup, state law may determine who receives which marital property—like money, the house, the car, etc. But if you have a prenup, the division of assets can be tailored to your specific situation, as agreed upon beforehand. It can make the divorce process go much smoother and faster—and hopefully save you money in the process.
2. Does getting a prenup mean that my fiancé doesn’t trust me?
“It absolutely doesn’t mean that they don’t love or trust you,” Derrick says. “Rather, it means that you’re trying to protect yourself and the other person—and you’re thinking about all of the possibilities. Nobody goes into marriage expecting to get divorced, but you want to think about the repercussions if that does happen.”
Carrozza looks at it even more positively. “It’s an opportunity for the couple to create a financial mission statement. Within a prenup, you go much further than just who gets what. You also outline your financial goals and priorities during the marriage, and use it as a blueprint to design your financial future with your partner.”
3. But I’m not wealthy. Do I really need one?
“It’s very common for someone with a degree of wealth to request a prenup,” Carrozza says. “But it can also be helpful to a partner with fewer assets because individuals will often quit a job or relocate prior to a marriage, and a prenup can ensure that they are made financially whole in the event of a breakup.” So if you quit your job to raise the kids, a prenup could specify that you get financial support from your spouse, since you may have a harder time finding new employment.
Derrick brings up another common scenario: Let’s say you’ve agreed to support your spouse through college, you’ve paid the tuition or you’ve helped to pay off your spouse’s student loans. Then, five years later, you’re divorced, your ex has gotten a free education … and you’re out several thousand dollars. “You can fight over that in divorce court,” Derrick says. Or you could spell things out before you find yourself in such a sticky situation.
4. How much will a prenup cost?
An attorney will charge you by the hour for drafting a prenup, and the total cost varies widely, depending on where you live, the caliber of the law firm and how complicated your financial situation is going into the marriage. According to Carrozza, if your finances are straightforward, you can expect to pay between $1,200 and $2,400 total.
5. Can I skip the lawyer fees and D.I.Y. my prenup?
The short answer? No. “There are some legal documents that people can do without an attorney, [like a basic will]. But this is not one of them,” Carrozza says.
A prenup is difficult to enforce unless you have your own attorney write it. So your fiancé can’t just hand you a legal document, and ask you to sign it. “That’s one of the classic ways to get out of a prenup—by claiming you did not have an opportunity to consult with your own attorney,” Carrozza says.
For a prenup to be legal, some states require that each of you to retain your own lawyer, and pay your own legal fees.
6. What’s usually included in a prenup?
At its most basic, a prenup will generally specify who gets what in the event of a breakup … including pets. “That is sometimes the biggest sticking point,” Carrozza says.
But a prenup can also help you hash through financial decisions for a happy marriage, like how to divide living expenses. Some prenups even have little hammers for infidelity or weight gain. (Take, for example, actress Jessica Biel’s cheating fee in her prenup with Justin Timberlake.) One thing you can’t specify: child custody, which would not be upheld.
There’s also a provision that’s popular with couples who get married later in life. If you pass away, and your will says that all of your assets should go to your children, by state law your spouse could still get a large chunk of your estate. A prenup can specify that all of your assets will indeed go to your children, as you intended.
7. When is a prenup not necessary?
If you’re both broke, and there’s no prospect of either party earning substantial assets, then don’t worry about it. “If neither party really has significant assets or business interests,” Derrick says, “it’s probably a waste of money and effort.”
8. Can we change the prenup later?
Sure—as long as you both agree to it. You’d just revoke the previous agreement, and create a new one. Even better, you can create your original prenup with a timer feature. “A lot of couples draft prenups that disintegrate on their own after, say after 10 years,” Carrozza says. Once this happens, the couple should then revisit the conditions of the prenup.
9. We didn’t get a prenup before we got married. Is it too late to get one now?
“It’s too late for a prenup, but there’s a new species of document called a postnuptial agreement,” Carrozza says. The most common reason for a postnup is to protect the inheritance of the kids you’ve had together.
If you were to get divorced or pass away, the postnup could specify that your ex or surviving spouse get a prenup before remarrying. Then, if he or she got divorced again, what used to be your money or assets goes to your children, instead of the new spouse.
“I’m also asked to draft postnups for a couple that has had an episode of infidelity,” Carrozza says. “The person thinking about giving the transgressor a second chance often does so on the condition that the spouse sign a postnup with a big sledgehammer provision that says, ‘If you do this again, I get 75% of the assets.’ ”
Information shown is for illustrative purposes only and is not intended as investment advice. Please consult a financial or estate professional for advice specific to your situation.
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