You’re in love, life is great and you can’t wait to get married. But have you considered a prenuptial agreement before you say I do? With almost 50 percent of marriages ending in divorce, taking steps to protect your assets may be a good idea, as long as you carefully consider all factors involved. “Anyone who is thinking about a prenup should talk to an attorney and weigh the pros and cons, because every situation is unique,” says Kirk Stange of Stange Law Firm.
A prenuptial agreement covers divorce and/or death, addressing what is considered marital and nonmarital property, along with the division of that property, defining and allocating debts, spousal maintenance and attorneys’ fees. Primarily, prenups are utilized by people with a considerable amount of assets, explains Bruce Friedman, attorney with Paule, Camazine & Blumenthal. “If someone comes into a marriage with significantly more wealth or an expectancy of wealth from an inheritance, he or she will want to protect those assets.”
Therefore, the agreements often are used by people entering first or second marriages later in life—sometimes with children and grandchildren—who want to ensure their legacy. “If people are young and just out of college, maybe they don’t have a lot to protect, and a prenup is not as important,” Stange says.
The consideration of a prenup is more frequent in today’s society with people waiting longer to get married and the equal importance of careers in a couple’s life, says Margo Green of Green Cordonnier & House. “When your parents got married, your dad may have worked and your mom did not. Today it’s very normal for both husband and wife to have careers, and both parties may want to protect their incomes.”
A prenup also can clear up confusion that may arise from Missouri law, which presumes that all property acquired during a marriage is considered marital property, explains Friedman, who is the author of the Missouri Bar Family Law Handbook’s chapter on prenups. “It adds certainty to what will and won’t be considered marital property by clearly defining it in the document.”
If a couple decides to pursue a prenup, those clear definitions are essential to a successful agreement. Each party must use their own attorney from separate firms to draft and negotiate the document, and it is not something that can be rushed. “I see people coming in a week before their wedding and they want to crank through the prenup, which is a problem—it’s a complex process,” Stange says.
If a prenup is not carefully handled up front, it may be thrown out if the marriage dissolves. “The courts will look to see if the agreement was entered into freely, fairly, knowingly, understandingly, in good faith with full disclosure, and was it conscionable,” Friedman notes.
Those requirements examine whether the document was signed without duress or coercion, and all assets were listed. If those elements are met, a prenup can make the divorce process easier. “Divorce is a very difficult process to go through, but if you can avoid the bitter, costly fighting by having a fair agreement, why wouldn’t you get one?” Green points out.
Unfortunately, prenups also can create problems in the relationship before a marriage, much less a divorce. “If the agreement is viewed by one party—the non-monied person—as overreaching, it really may fester and sow seeds of discontent,” Friedman says. “It becomes a constant reminder of the lack of economic partnership between two people.”
Therefore, all sides and possible consequences of a prenup should be considered. It may be a difficult conversation, but one that could help down the road, Friedman says. “Money is one topic I don’t think people talk enough about before they get married. A prenup forces people to address what is sometimes considered a forbidden topic and define their expectations before it’s too late.”