Whether you are a man or a woman, if you’re getting married and have substantial assets, you should set up a pre-nuptial agreement. With nearly 50% of American marriages breaking up, a pre-nup can protect everyone and save a lot of heartache.
The basics are simple and the following checklist of tips will help you through the process. But in order for a pre-nuptial agreement to be recognized by a court, both sides should have independent counsel and the agreement cannot be one-sided.
- Avoid pressure. Pre-nups are meant to be mutual agreements. Speak openly and honestly with your partner and give serious consideration to the agreement. If you want your pre-nup to withstand any later challenge, it’s obviously not a good idea to thrust a 50-page document in front of your spouse-to-be on the night before the wedding, after all the out-of-town guests have arrived.
- Full disclosure. Generally, a pre-nup should list both parties’ assets, as of the date of the marriage. If one party doesn’t make an adequate disclosure, the agreement is likely to be disregarded.
- Before and after. Virtually anything can go into a pre-nuptial agreement but the basic structure is yours-mine-ours. In other words, each spouse retains the assets he or she brings into the marriage while both own assets accumulated during the marriage.
- Anticipate the worst. Pre-nups need to anticipate death, as well as divorce, so the same principles can be extended to an estate plan within the agreement. For example, the net worth you accumulate before a second marriage could go to the children from your first marriage, while assets accumulated afterwards might go to your second spouse and any children from that marriage.
- Spousal waivers. Your spouse is entitled to be the beneficiary of your employer-sponsored retirement plans. Only a spouse can waive that right, if you intend to designate a child from a previous marriage as a retirement plan beneficiary. Such a waiver can’t be legally included in a pre-nuptial agreement. It must be handled separately. However, a pre-nup agreement might include a promise that those rights will be waived after the marriage and penalties can be established if the promise isn’t kept.
Asking your spouse-to-be for a list of assets isn’t the most romantic undertaking. One tactic to make the process easier may be to say that you have an attorney or an accountant who insists that a pre-nuptial agreement be in place before the marriage.
These are just some of the issues that can be involved in a pre-nuptial agreement. Be certain to contact a lawyer or financial advisor to ensure the document is binding and complies with state laws.