Pre-nup woes

March 18, 2009 11:43 AM

Pre-nup advice--both practical and emotional--needed.

I am recently engaged and thrilled about it, as is my intended. I have some assets that I feel need to be protected as they are *really* my parents' assets that are in my name. There are four pieces of property:
--Three are titled jointly with my dad and are worth very little, particularly now.
--One is a beach house in my name alone and is worth about 2 million (assuming it ever, ever sells). Half of that 2 mill, when it sells, is to be set aside for my parents' care, well-being, comfort, etc., in old age (this was a verbal instruction from my grandmother before she died--I know this wasn't the best way to do things, but it's done now). Half of the money will be mine and I have mentally earmarked it for retirement or emergencies or various costs associated with children.

This morning I asked my fiance how he felt about signing something that said that in the event of death or divorce he wouldn't have any claim to the beach house or the money derived from a sale. He was extremely upset that I evidently don't trust him to behave with integrity. Now, I certainly DO, or I wouldn't be marrying him--but I think it is better to have things spelled out ahead of time.

I feel on solid footing with my argument that I want to protect my parents' half. This seems unassailable to me. But I am feeling guilty about wanting to also protect MY half. (I know that a reasonable prenup would say that any appreciation--HAH--in the house would be split, but the initial amount would be mine.)

SO: my question is: Is there way to solve these problems WITHOUT a pre-nup? A living trust, maybe? (I know I will have to speak to a lawyer in our state, NY)

And is there a way to make this more palatable to him? FWIW, he has agreed to sign anything I ask, I'd just like this to be a less distressing topic. He says he wished I had phrased it as "this asset will be keep separate from the MARRIAGE rather than this asset will be kept separate from the DIVORCE." (He became very upset at discussion of death and divorce.)
Please note that he is very generous and loving and both of are in it for the long haul. And--if you are vehemently against pre-nups, I don't need to hear about it, as protecting at least my parents' half makes some sort of agreement critical.

posted by anonymous to human relations (23 comments total)

IANAL

I would set up a trust. The beneficiaries of the trust should be your parents, your children and your self. Mission accomplished.
posted by zia at 11:53 AM on March 18

I know nothing about your legal questions -- this is only about the psychological aspect:

You say he became "very upset at discussion of death." I hate to say it, but everybody is going to die. Like everyone else in the world, you could die at any point. If you're going to be married till death do you part, that implies that one of you is going to have to live through the other's death some day. Upsetting? Yeah! But you have to confront reality sooner or later. Given these facts, isn't being prepared the only smart/mature thing to do?
posted by Jaltcoh at 12:09 PM on March 18

He was extremely upset that I evidently don't trust him to behave with integrity.

First of all, this seems not a little childish and immature. Second of all, what if you explain that it is not him that you distrust, but "lawyers". Just leave it vague like that. "What lawyers?" he says. "I don't know. Lawyers are always involved in that kind of estate stuff, right? Anyway, sign here, sweetie."
posted by Rock Steady at 12:09 PM on March 18

In addition to blaming it on lawyers, blame it on the law. Tell him you've heard that sorting out property after a person dies can be very expensive, time-consuming, etc. and you want the paperwork to be as clear as possible about who has a right to what.
posted by Mavri at 12:19 PM on March 18

This is as much about him being able to care for his in-laws in their old age as anything else-- has he thought of that? I *despair* of scratching up the cash for my parents' eventual care, because I'm pretty sure they have no idea what this stuff actually costs and think magic elves will handle it.

Perhaps you guys can sit down with a financial advisor before you get a lawyer, just to outline why this is a wise idea and part of your eventual retirement planning. Bringing in a pro and discussing it on neutral ground may make your fiance feel better.
posted by fairytale of los angeles at 12:26 PM on March 18 [3 favorites has favorites]

Acknowledge his feelings, thank him for understanding that you need iron-clad protection from *all* possible eventualities of your parents' assets, and then consult a lawyer as to which mechanism best suits your legal/financial/emotional needs.
posted by mrmojoflying at 12:27 PM on March 18 [1 favorite has favorites]

What about viewing this as a way to respect your Grandmother's wishes and talking with him about how important that is to you? Maybe you can view whatever type of trust or agreement you implement as a way to make Grandmother's desires more concrete than just the verbal instructions she's left for you. It puts the focus on "doing what Grandma wanted" instead of on him and terrible things that could happen in the future.
posted by bbq_ribs at 12:33 PM on March 18 [1 favorite has favorites]

The really difficult thing about getting a prenup at least in California is that you both have to obtain separate counsel for the document to be legally binding. So you end up in an adversarial relationship in which communicate with one another through separate counsel. That's just a tough thing to do right before your wedding. Also, and this is important too, it can cost a lot to obtain that separate counsel. And it's usually not a good idea to pay for his separate counsel because it can create a conflict of interest.

Consult a lawyer and see if there might be ways to protect the property without a pre-nup. For example, maybe setting up a family trust with just you and your parents as beneficiaries (note I'm not recommending that you do this, but it's something to talk to a lawyer about).
posted by bananafish at 12:41 PM on March 18

But I am feeling guilty about wanting to also protect MY half.

I'm not anti-pre-nup, and your concern for your parents' legal and financial situation sounds entirely rational, but the above jumps out to me as warranting more thought and discussion. I would imagine that the best mindset for signing a pre-nup agreement would be one that views it as an explicit legal and financial agreement intended to address the business/economic side of the joining of two lives, free of hurt feelings due to perceived mistrust (on your fiance's part) or guilt (on your part). If you're planning to go for premarital counseling, I'd suggest bringing this up there.
posted by Meg_Murry at 12:41 PM on March 18

Were I still married to my wife, and the idealistic romantic that i was 2 yrs ago, i might have sided with you fiance in this; but my wife walked out on me one day with no warning, after 11years together she just had a change of heart, and now everything i worked so hard to build (with her, to some degree, of course) is half hers, even though she just walked away from it.
Get a lawyer or a mediator, discuss the language of the agreement, and try not to quibble over technicalities of the language in an attempt to achieve those things that you can seem to agree on, which seems to be that you are coming into the marriage with assets that are earmarked for your parents and you want that to be the case should anything change (you both might be killed and his next of kin might make claim, etc.).
Sounds like it won't be hard to do once you get past the fact that others have already made laws that take into account future possibilities, and those laws are already steeped in language that has certain negative connotations.
posted by OHenryPacey at 12:47 PM on March 18

Do not judge his character on how he reacts to talking about death. Pretty much everyone reacts this way. In my experience even people I look up to and think are mature resist making the necessary plans. Don't dwell on it. Consult a lawyer and then say the lawyer is making me do this. He'll get over it.

Then see the movie Intolerable Cruelty. OMG hilarious. But you should probably watch it by yourself. He might not think it's funny. Rent it and watch it with girlfriends.
posted by cda at 12:55 PM on March 18

With property that large, you need to see an attorney about this. Bring the SO into it and ask for their input on how to protect those assets for your parents as you promised to do.
posted by Ironmouth at 12:57 PM on March 18

I think maybe you need to explain it as though you are rectifying a mistake that happened in the past: some assets currently under your name are not yours and therefore it would be wrong for you to bring them into the relationship with him.

It's not as if you have things that you're holding back from merging with his because you don't trust him, you just have — basically by accident and dint of people not doing the paperwork they should have in the past — things which on paper are yours, but in reality shouldn't be.

IANAL but I think you might be able to divest yourself of the property or properties, and transfer it to a trust, with your parents as the beneficiaries. Thus there's no pre-nup, you're just getting things out of your name which never should have been in your name.

You just need to make sure, when you go to a lawyer to work this out, that the trust completely breaks any claim your new husband might have on the assets in the future. Be clear to the lawyer that you want these assets protected for your parents against any eventuality (divorce, death, fiancee turns out to be Manchurian Candidate sleeper agent, etc.).

The trust may lead to more complicated taxes in the future but it's my understanding they exist for exactly the sort of situation you're in.
posted by Kadin2048 at 12:58 PM on March 18 [2 favorites has favorites]

I want to give you some moral support and affirm that you're doing the right thing. My partner's parents are wrangling about equalization payments 10 years after their divorce. MY parents are still fighting over my father's pension benefits almost two decades later. My partner and I have sworn that if we ever take the plunge we're spelling everything out ahead of time.

Kindly ditch your guilt and approach it as an non-negotiable requirement for marriage for which you don't have to apologize. If more people did this our family law system would be a lot better off.

Someone above mentioned that both parties need counsel in some jurisdictions. Even if it isn't a requirement, I'd highly recommend it as it makes the agreement much more enforceable (at least here in Canada). However, be aware that any family lawyer worth his or her salt is likely going to tell your fiance that he's signing away benefits he'd be entitled to and advise him against doing so. Even if he wants to sign them away, this will likely cause further friction.

I can't help with your question about a non-pre-nup way to do this -- only a lawyer can.

Note also that there are special rules about the matrimonial home in many jurisdictions. It may be that you can't provide for its disposition by pre-nup and you're stuck with risking half of it if you choose to live there with him. Again, you need a lawyer to tell you this.

So to answer your other question: If you feel you must bend over backward to make this incredibly practical and correct idea palatable to your fiance, treat it like a complete formality. Agree (at least outwardly) that it's distasteful, but that you have family obligations that just won't gel with the financial obligations of marriage. Emphasize that this is not a preparation for divorce or a lack of faith in your futures together: it's purely a rubber-stamp on the way to the wedding.
posted by hayvac at 1:15 PM on March 18 [1 favorite has favorites]

Half of the money will be mine and I have mentally earmarked it for retirement or emergencies or various costs associated with children.

If you two are married when/if you sell this beach house, then I think these are fundamental events with which you would want to share decision-making with your husband, and over which he should have some say. I think having equal rights to the money encourages planning and decision-making that works for both people (and therefore for the family). That is, if you sold the house while married and came away with $1M which you then wanted to spend on your kids by giving them each a Lotus Elise, I can imagine any spouse feeling like this should be a joint decision. Even if you want it saved for college versus him wanting it used to help junior start a business, these are the decisions relationships are made of. If you sold the house after you were divorced, the question would be moot, right? That is, he wouldn't have any rights anyway since the house is only in your name and the profits wouldn't necessarily become joint property. (IANAL yadda yadda).

I think the best course forward is to get a prenup--it seems like both of you will need clarity now that the topic has been broached. In my experience, mostly what helps a prenup go smoothly is giving it enough time for you to have the tough conversations needed to deal with both the emotional and financial issues that come up. They are tough because you're laying on the line your values "made real" before you've actually made a commitment to each other and before you've built up any reserve or experience of relationship goodwill though difficult times. It's a very difficult balance beam for two people to walk well. In addition, your husband should have his own legal counsel and this may complicate what you see as a reasonable request (and laws and precedent of your state may impact what's considered reasonable).

If at all possible, try working with a mediator beforehand to spell out the general intention of an agreement, and its basic points, and then bring that to your individual lawyers. If they both know that you are both on board with the terms, then I think there will be less friction than in starting out with each lawyer trying to get the most (or least) out of the other party. That, and have a decent couples counselor lined up in case things get too hot and you need some outside help working though the emotional stuff.

I don't support Rock Steady and Mavri's approaches. Is that how you'd want to be dealt with by your husband? This is the first of many difficult conversations you'll have as a couple and I think it pays to cut your teeth on it rather than sidestep it. Not good precedent.
posted by cocoagirl at 1:34 PM on March 18

some assets currently under your name are not yours

At the risk of derailing -- is this not at least part of the problem here? The OP has properties that are in her name but are "really my parents assets". To me that sounds somewhat fishy: is there some generational tax avoidance going on here?

Maybe part of the solution to this is putting these nod-and-a-wink arrangements of assets onto firmer legal footings, so that it is then clear what you are bringing into the marriage and what is outside it?
posted by We had a deal, Kyle at 1:35 PM on March 18

(which latter para was pretty much what Kadin went on to say, on closer reading.)
posted by We had a deal, Kyle at 1:37 PM on March 18

You definitely need to talk to a lawyer. Since you don't mention a jurisdiction, your lawyer will be able to give you advice that actually applies to the legal system where you live.

I do agree that approaching this as an administrative housekeeping matter might be a better way to go. Things were not done properly in the past, and now you are going to be responsible and take care of them before you bind your fiance to you legally. There's another reason to do this, besides death and/or divorce: right now you are potentially a very deep pocket. Were you to get sued for some unforeseen reason (traffic accident/ dog bite/ whathaveyou) then your parents' retirement could be in jeopardy. A Trusts & Estates lawyer will help you figure out how to structure things so that your parents are taken care of. They will also be able to advice you on how to manage your finances in an ongoing basis to maintain that protection. That advice will vary greatly from state to state, so please talk to a lawyer. Your local bar association should have a referral service if you don't know where to start.
posted by ambrosia at 1:44 PM on March 18

I disagree with most of the advice above. The problem here is that you are both on very different levels when you're talking about this. For you, it's about your parents, about your children, and to some degree about your future. It's not about him, and you don't see any reason why it should be.

Whereas he apparently feels as though this is about whether you trust him to respect your wishes when it comes to where the money goes in the future. Rock Steady calls this "childish and immature," but it seems perfectly rational to me. If you trusted completely that he will respect your wishes and keep his nose out of your monetary business, why would you need a prenuptual agreement? Likewise, if you trusted 100% that the marriage was going to stay together, why would you need a prenuptual agreement.

Now, that's not to say that you should trust him about this monetary matter or trust the marriage to stay together - it's only to say that you don't. Nor are you even required to trust him with this or anything in order to marry him - people get married for all sorts of different reasons. Some couples keep their financial affairs completely separate and even secret from each other in marriage; some live in separate houses. Others merge these things to different degrees. Some people get married knowing it won't last that long; some people don't really know, whereas some people feel the need to put something on the line in order to motivate themselves to keep it together. I think you're in the 'don't really know, keeping it relatively separate' category.

But he's not! Bringing up the prenuptual agreement hurt him because you two apparently have fundamentally different expectations about the meaning of this marriage. For that reason, I think you really need to drop everything and figure this part out.

If either of you is expecting this marriage to be something it's just not going to be, then you shouldn't get married.
posted by koeselitz at 2:53 PM on March 18

Speak to a lawyer in your jurisdiction. In community property states, separate property stays separate, although the increase in value during the marriage is community property. Which is, in my opinion, fair and requires no agreement.
posted by ClaudiaCenter at 3:18 PM on March 18

Zia got it right with the first answer. This is just what to do. Put your assets in a trust and designate the beneficiaries as you like (your heirs, your siblings, parents). He doesn't have to sign anything or be involved at all. If the marriage breaks up with bitterness and disagreements, it's clear that these were assets you brought to the marriage. If you live happily ever after together, none of this will matter. You can always change the beneficiary on the assets in the trust if you want. Talk to a lawyer and ask them to explain this to you. I'm not a lawyer but I have first-hand knowledge of this being a good option in a situation like this.
posted by Kangaroo at 4:17 PM on March 18

This isn't about your marriage -- this is about a commitment you made before the marriage, and about honoring that commitment. You trust him with everything that's yours, but since you'd already given your word to somebody else, interest in these items is not yours, and it's not your decision whether they should be part of the marital property. Other parties have trusted you with protecting those assets on their behalf, but they are not around to say they trust your fiance as much as you do (or should not be put in that position, in the case of your father). Trust is not transitive.

You're simply protecting your previous commitments because, well, your word is meaningful to you. Your future husband, of all people, should be able to appreciate the value you're placing on your promises, no?
posted by SeanCier at 4:46 PM on March 18

Here's the thing.

What if (God forbid) you both died in a plane crash on the way back from your honeymoon?

Now your parents have to rely on your husband's heirs to respect your grandmother's wishes about the beach-house thing.

Yeah, yeah, your grandmother's lawyer was an idiot, and your parents shouldn't have put property that is actually theirs in your name (I assume it's for tax avoidance or some other slightly underhanded purpose, like getting it off the books in a bankruptcy), but since you don't have a time machine and can't go back to reverse those decisions, you've got to put them into legal form going forward.
posted by Sidhedevil at 6:40 PM on March 18 [1 favorite has favorites]