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What is a Prenup

The mood is just right… a romantic, candlelight dinner for two in an elegant restaurant and when the dessert arrives, there is something much sweeter than the crème brulee, as the gentleman suddenly pulls a velvet box out of his chest pocket and pops the magical question to the woman.  We’ve seen enough romantic movies to know that the question is “will you marry me?”  After the young lady answers in the affirmative, suddenly there are a flurry of decisions to be made and many details to be dealt with before the big event.

But, should one of those details be putting a prenuptial agreement in place before the wedding day?

Nothing puts a kibosh on upcoming nuptials more than talking “prenup”, a word commonly used to describe a prenuptial agreement, or a “contract” that is created between two people before they marry.  This prenuptial agreement may exist between two heterosexual individuals, or, a same-sex couple.

When you read the title of this post:  “What is a Prenup?” you might have scoffed at the topic, thinking prenuptial agreements are just for the rich and famous and not applicable to everyday people.  If a budding romance seems headed to marriage in the near future, you should check out some of the reasons why you might want to consider the practicality of a prenuptial agreement, rather than merely dismissing it as something that is irrelevant to your relationship.

Prenup as a practical investment

Unfortunately statistics don’t lie.  The American Psychological Association lays the facts right out for you:  “about 40 to 50 percent of married couples in the United States divorce.  The divorce rate for subsequent marriages is even higher.”

That is rather disheartening isn’t it?  The APA notes that more than more than 90 percent of people marry by age 50.  Not all marriages are unhappy.  People who were raised in a happy home free of any parental mental and physical anguish will gravitate to a mate that they feel will give them the same type of relationship that their parents enjoyed.  It had been a joke through the years that a woman must possess the same attributes as “Mom” had and a woman who falls short on those attributes is not the “right one”.  Likewise for the father role model when a woman chooses the man that will be her companion and father to their children – can he meet such high expectations that “Dad” as a role model had?

In today’s world, perhaps this is why so many couples decide to live together before considering marriage and commit to a semi-permanent relationship on a trial basis.

Reason for getting a prenup

Putting a prenuptial agreement in place will help protect your financial stability.  As of 2015, there are nine states that have community property laws which determine how debt and property will be divvied up should a marriage end in divorce.  Those nine states are:  Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.  In these nine states, the law states that absent a prenuptial agreement, you and your spouse will share assets, property and debts equally regardless of whose name is on titles, registrations or deeds.  That can mean a huge financial loss if one spouse contributed more monetarily than the other.  As to the balance of the states in the union, separate property laws exist.  In these particular states, the law says that if you have most non-joint assets and debts in your name, if a prenuptial agreement is in place, it will create a more even division of property and assets and will guarantee that your spouse will not get the family heirlooms.  Most importantly, the contract, or prenup, will define in advance of the wedding what you and your intended consider marital and separate property.

Not only does a prenuptial agreement preserve the financial assets of the husband and/or wife, but will also protect the financial stability of your children.  Without a prenuptial agreement in place, the monies or assets you have intended to gift to your children may well end up going to your spouse.  Although, divorce may be amicable in some cases, if it is a second marriage for either party, or both, which is a “blended marriage” (defined as including children from a prior marriage or relationship), the prenuptial agreement prevents your spouse from taking assets or property for their kids over yours.

It sure sounds complicated and almost distasteful to think that your marital bliss might be tarnished by such dreadful, devious scheming and misappropriation of joint property, but it sometimes does happen.

Proactive couples even have spousal support drafted right into the prenuptial agreement.  That way, there is no quibbling over dollars and cents should the marriage be dissolved down the line.  Since the prenuptial agreement is a legal contract, no matter how many disagreements occur as divorce looms, a court of law will enforce the terms of the contract that was willingly signed by each of the parties.

Disadvantages of a prenup

There are drawbacks from the get-go as soon as the idea of a prenup is discussed.  There will be hurt feelings and understandably so.  The person who introduced the idea is instantly thought of as a doomsayer and not having much hope for this sacred and happy union.  Some parties may deem the other party as a “gold digger” who will eventually seize assets and run off to parts unknown.  Additionally, the financial assets in place at the time the ink dried on the signatures of the prenup may change during the pendency of the marriage – for the good, or, even the worse.  If the prenuptial agreement dictates funds to be directed to a spouse and children, by the time the funds are disbursed, there may be precious little monies left for the person who led a comfortable and cushy lifestyle before entering marital and parental bliss.  If the terms of a prenuptial agreement as drafted are too rigid, or even too frivolous, a judge might review the contract and disagree with the contract and enforce the contract on his own terms.

If the notion of putting a prenuptial agreement in place and broaching the subject with your significant other simply terrifies you, you might wish to consider consulting with a top divorce attorney.  He or she will explain both the benefits and ramifications of a prenup and assuage any uncertainty you might be experiencing.

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