Before their 2014 wedding. Hollywood power couple, Angelina Jolie and Brad Pitt, created a prenuptial agreement. Reportedly, Jolie’s $185 million and Pitt’s $240 million would remain their own if they exit the marriage. Of course, as with most celebrity marriages, there are non-stop rumors that the couple is on the brink of divorce.
Prenups are becoming standard
Even if you aren’t famous or financially well-off, most personal finance experts recommend that you also create what, for short, is called a “prenup.” Essentially the prenup specifies how assets will be divided in the event of a divorce or death. There could also be provisions for alimony. And if there are debts, will they remain separate or be treated as a communal liability.
The prenup’s terms and conditions must comply with state law. Those vary significantly from state to state.
A survey by the American Academy of Matrimonial Lawyers found 63 percent of divorce lawyers reported an increase in the use of prenups. Almost half reported that more women are requesting them.
Not everyone views a prenup as necessary
“On the face of it, a prenup is nothing, more or less, than sensible financial planning,” Will Meyerhofer tells MyBankTracker. As a psychotherapist, author, and former corporate lawyer, he has experiences in which “a pre-nup is arranged as a matter of course – there is an implicit understanding that these two people trust one another and respect one another’s wishes and that’s that – no big deal.”
But, Meyerhofer also has encountered couples who approach marriage in the traditional way of total sharing. There will be no segregated accounts. So they see no need for a prenup. The individual assets they bring into the marriage, as well as the debts, they consider communal property. That decision programs how they manage financial matters throughout the marriage. But too often, notes Meyerhofer, “Should a divorce happen, one of the partners immediately empties the joint accounts, creating financial havoc for the other partner.”
However, even before that, the notion of joint accounts can generate fractures in the marriage. Potentially the most perilous are purchases made by one party on a joint credit card. A more prudent personal finance approach would be to have separate credit cards and a joint one only for household purposes. Its balance should be monitored by both parties monthly.
Prenups can be declared invalid, years later
If you do create a prenup, the conditions under which you do it factor into the legality of the document. Prenups have been subject to invalidation years later. This usually occurs during a divorce. One party wants to have the prenup voided.
Those conditions include evidence of duress, inadequate legal counsel, false promises, unconscionable terms, and unforeseen circumstances, Therefore, what should be obvious to you is this: The legality of the prenup is not bulletproof.
Therefore, this is one situation in which a Do-it-yourself approach, which is perfectly legal, might not be the most prudent way to proceed. That especially pertains to those of you with considerable assets as you enter the marriage.
A typical case of a voided prenup happened when a Brooklyn, New York Appellate Court panel held up two other courts’ rulings. Elizabeth Cioffi-Petrakis, spouse of millionaire Peter Petrakis, was found to have been coerced into agreeing to the prenup. The prenup was presented to her four days before the $40,000 wedding, which her father had already paid for.
That is New York. These sorts of invalidations of prenups vary from state to state. Here is a case study of the enforceability of a prenup in California.
Counterintuitive that marriages for love use prenups
To some of you who follow trends, it may seem odd that on the one hand, more couples are marrying for love. Yet, the use of prenups is growing.
Well, the women’s liberation movements have disrupted the institution of marriage. Increasingly it’s a total partnership. Less and less is it a platform for the division of labor in which the male brings home the bacon and female tends the hearth. Instead of the lawyer marrying the secretary the two lawyers marry. That means both will probably be bringing assets into the marriage.
In addition, in gay marriages, it’s typical that both parties will earn a living and be self-supporting. But given the reality of gay divorce, they too are being advised to create a prenup.
Who’s off the hook for creating prenups
You and your soulmate may be just starting out in your adult life. You plan to marry. You are you are wondering if a prenup is necessary. The odds are that the answer is “no.”
Prenups are not recommended if this is your first marriage, there are no assets, no significant debts, and no children.
Ways to create the prenup
Essentially there are two ways to put together a prenup. One is as a DIY. The other is with the guidance of legal counsel.
In other nations outside the U.S., the Do It Yourself (DIY) prenup is gaining popularity. The growth is being fueled by a combination of an increase in the divorce rate and the availability of no-cost or low-cost online legal services.
In the U.S., there are plenty of information sources and online services to assist you.
Nolo, for example, has as its mission helping consumers find answers to everyday legal questions. In an article on prenups, Nolo recommends the book “Prenuptial Agreements: How to Write a Fair & Lasting Contract.”
Most online legal services provide background information and the state forms for a prenup. Here is a recent review of several of those services.
But, the major drawback to the DIY approach is this: When divorcing, parties could contend that they either did not understand the legal and financial implications of what they were agreeing to and/or were under some kind of duress.
Also, power in relationships may not be equal, either on a temporary or sustained basis. During the engagement, for example, the once confident corporate executive who has lost a job might cave to inappropriate prenup provisions. Or from the original dating situation to throughout the marriage, one partner with more education or wealth winds up dominating another. If you both have separate lawyers representing you, the agreement will not become tilted unfairly in one party’s favor.
Yes, a fair DIY which would hold up in court later can be created. Here is one tip: Complete the prenup before the wedding invitations are distributed. Typical is one party’s contention during a divorce that he or she felt undue pressure to sign the contract because the wedding was in a few weeks and already paid for. Most states have adopted some version of the Uniform Premarital Agreement ACT (UPAA). Some states actually have specific rules about timing. For example, California mandates seven days period between the prenup signing and the wedding.
Paid legal counsel
The second option is to be counseled by a lawyer. The ideal situation is for each party to be represented by a separate lawyer. If the parties don’t want the agreement voided, one party shouldn’t recommend to the other party what lawyer should be hired. That could be interpreted as a form of coercion.
Yes, you have to shop for a lawyer. What you are looking for is an advocate. The licensed legal expert is on your side. The chemistry has to be right. You have to feel totally comfortable confiding your reservations about your soon to be spouse, the provisions being negotiated, and any terms and conditions, such as alimony for X dollars for five years, you assess as non-negotiable. And, of course, the lawyer has to have financial expertise.
How to shop? Ask around your network. Check the reviews on the Internet of prenup lawyers. Take advantage of complimentary consultations. You want to do this as soon as you are engaged, that is, after making the commitment to marry. That will give you all the time you need to navigate these complex financial – and emotional – issues.
Essentially, you and your lawyer need to partner as a type of Chief Financial Officer (CFO). The CFO requests documents. If your spouse promises that a vacation home will be joint property, you want that in writing.
It’s possible that you will sign one prenup agreement and then have second thoughts. Yes, that can be voided and a new one created and signed before the wedding. If there is a dispute during the divorce, the second document is the one the court will reference.
Humans plan, the gods laugh
Another way a prenup can be voided is if there is a significant change in your life. The classic example is an accident which incapacitates you. In your prenup you waived the right to alimony. You can go to court to revisit that.
The reality about a prenup is that it really doesn’t guarantee anything. California lawyer, Christopher C. Melcher, observes in an article on drafting prenups that they are much like parachutes. You don’t know if they will do what they are supposed to until you land safely.
Jane Genova is a widely recognized authority on personal finance and the law.