PRENUPS: DISCUSSING DIVORCE WHEN PLANNING A MARRIAGE.

We insure our homes, our vehicles, our health, and even our lives, so why not our marriages? Fortunately, the catastrophes we insure ourselves against don’t often occur, but aren’t we thankful we were insured when something terrible happens? Part of being smart and responsible is protecting against the “what if’s” in life.

Premarital agreements (prenups) are becoming more commonplace these days for a variety of reasons. Just because a couple thinks they may need one does not mean the marriage is destined to fail. In fact, being able to discuss such a sensitive topic demonstrates the sort of trust and open communication that is required in a good marriage.

What is a prenup?

A prenup is shorthand for a premarital agreement. It is an agreement between soon-to-be spouses that becomes effective at the time of marriage. A prenup must be in writing and signed by both parties.

In Texas, a premarital agreement (prenup) may address issues regarding property, spousal support (a/k/a alimony), personal rights and responsibilities, and other matters so long as these things do not violate public policy or any statute that imposes a criminal penalty. Such agreements cannot adversely affect the rights of a child to child support either.

And because the financial duties between fiancées is different than that between spouses, it is good practice to follow up a premarital agreement with a post marital agreement reinforcing the prenup once the couple is married.

Why do I need a premarital agreement?

Prenup is not a dirty word! Given that today’s divorce rates are high, odds are that many couples getting married are not doing it for the first time. At the most basic level, a prenup is a form of protection in the event things don’t work out. However, there are several other benefits to prenups:

  • Protect your inheritance;
  • Protect children from a prior relationship;
  • Protect assets you have worked hard to earn;
    • Certain assets acquired before the marriage may be separate property, but the income generated by those assets during the marriage might be community property. A prenup can clarity how both the asset and the income will be characterized during the marriage or in the event of divorce.
  • One (or both) of you has a history of messy divorces;
  • Protect a business, especially a family business;
  • Financial disclosure;
    • One of you may have significantly more debt than the other;
    • One of you may have significantly more assets than the other;
    • Full financial disclosure is required to have a valid premarital agreement;
  • Set expectations of the marriage;
    • Asking for a prenup can be a good way to open dialogue about spending and saving habits, how accounts will be handled, how expenses will be paid, and generally what each person’s role in the marriage will be. Do you want children? If so, is one of you expected to quit working and stay home? Is there a history of infidelity? If so, what can you expect if it happens again? No topic is taboo. Some couples even negotiate how often they will have sex.
  • Estate planning;
    • A prenup, especially in conjunction with a Last Will and Testament and some estate planning, can address what to do in the event of death.

What can a premarital agreement do?

  • Specify how future earnings and income will be shared or divided;
  • Specify how current and future assets will be owned;
  • Specify how current and future debt will be managed;
  • Waive survivorship rights in each person’s estate;
  • Waive alimony or spousal support in the event of divorce;
  • Waive death benefits from government, military, or other programs;
  • Minimize the expense and frustration of a divorce or the uncertainty among family members in the event of death.

So how do you tell your spouse that you want a prenup?

“Honey, I want a prenup.” Not the most romantic words ever uttered. But they can certainly show someone you love and care about them. Below are some suggestions for getting the conversation going.

Discuss it sooner rather than later. Congratulations, you’re engaged! Now let’s get down to business. Do not wait until the week before or day of the wedding to talk about a prenup. Leaving it to the last minute can result in resentment and negative feelings – not a great way to begin your marriage.  Ideally, a prenup should be negotiated and signed well in advance of the big day so that you can focus your energy on planning your wedding and getting excited about creating this new life together.

Explain your reasons for wanting a premarital agreement. Be open and honest. Reasons you may want a prenup can include protecting your children or your credit.

Hire separate counsel and be prepared to negotiate. Make sure you and your betrothed have separate attorneys and are each represented so that claims don’t pop up later that one of you had an unfair advantage over the other. Be flexible in the terms, and don’t expect to get everything you ask for. Once you’ve opened the door, your soon-to-be spouse may have some demands of his or her own. Be reasonable and avoid getting overly aggressive to the point that you risk your relationship. A good agreement considers both person’s expectations and requests.

Sample Conversation Starter

“Let’s talk about our future together and how we plan to address our finances once we get married. I want to be sure we are on the same page about how bills will get paid, how we will set up our bank accounts, what sort of budget we need to plan for, and how we plan to take care of each other in case one of us dies. If we talk about it now, we’ll be less stressed when we are planning the wedding, and we will have a good start to our marriage. “

How do I get a prenup?

Talk to an experienced family law attorney! An experienced family law lawyer can explain the process, answer questions, negotiate terms, and draft an agreement.

And in the event a divorce does become necessary, if you have a premarital or post marital agreement that is in effect, then your divorce lawyer will guide you about how such agreement may affect your divorce.

At Alexandra Geczi | Family Law, we are experienced divorce attorneys and family law lawyers who can help you with both drafting and enforcing your premarital agreement. Visit www.FamilyLawDFW.com or call 214.269.4256 to learn more.

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