Should we get a prenup?
June 1, 2016 3:40 PM Subscribe
We're getting married! Hooray! But given our life circumstances, does it make sense for us to sign a prenup?
You are not my lawyer. None of what you write herein shall be construed as legal advice.
My fiancée and I have discussed the possibility of signing a prenup. We currently have comparable assets (none large, mostly liquid), comparable debts (student loans - well, to be completely accurate I have them and she's about to, after the marriage takes place), and comparable earning potential. In the case of inheritances (likely somewhat larger, probably mostly in the form of things with titles - no secret cache of jewels or anything) we would probably keep those assets separate. Neither of us has children. We probably will have some together.
So while some of the folks we have talked to think prenups are uniformly a good idea, at least one person has told us there is nothing much for either of us to protect that would require a prenup, and furthermore established law is much more likely to have considered all the eventualities than we are if we try to come up with one. Fair enough, I suppose. But one thing to consider is that we will very likely spend the next decades of our lives living in countries other than the one we will marry in (the US). So we wondered - should we come to the sad conclusion that our marriage must end while living in a jurisdiction that has what we would consider to be unfair divorce laws, could a prenup help ensure an equitable division of assets and liabilities? If that person we spoke with is right, could we have one that only comes into effect when/while we are living in jurisdictions other than the US? Or would a US prenup not be worth the paper it's printed on anywhere else? And/or are there any other arguments for a prenup in our case?
You are not my lawyer. None of what you write herein shall be construed as legal advice.
My fiancée and I have discussed the possibility of signing a prenup. We currently have comparable assets (none large, mostly liquid), comparable debts (student loans - well, to be completely accurate I have them and she's about to, after the marriage takes place), and comparable earning potential. In the case of inheritances (likely somewhat larger, probably mostly in the form of things with titles - no secret cache of jewels or anything) we would probably keep those assets separate. Neither of us has children. We probably will have some together.
So while some of the folks we have talked to think prenups are uniformly a good idea, at least one person has told us there is nothing much for either of us to protect that would require a prenup, and furthermore established law is much more likely to have considered all the eventualities than we are if we try to come up with one. Fair enough, I suppose. But one thing to consider is that we will very likely spend the next decades of our lives living in countries other than the one we will marry in (the US). So we wondered - should we come to the sad conclusion that our marriage must end while living in a jurisdiction that has what we would consider to be unfair divorce laws, could a prenup help ensure an equitable division of assets and liabilities? If that person we spoke with is right, could we have one that only comes into effect when/while we are living in jurisdictions other than the US? Or would a US prenup not be worth the paper it's printed on anywhere else? And/or are there any other arguments for a prenup in our case?
The prenup could specify what law you want applied and the jurisdiction (forum) you would want any proceedings to be held in.
posted by saturdaymornings at 4:32 PM on June 1, 2016 [1 favorite]
posted by saturdaymornings at 4:32 PM on June 1, 2016 [1 favorite]
In my understanding, prenups are really only useful if one of you brings substantially more assets into the relationship, or possibly if one of you stands to inherit a large fortune.
posted by Sara C. at 4:40 PM on June 1, 2016 [1 favorite]
posted by Sara C. at 4:40 PM on June 1, 2016 [1 favorite]
If nothing else, get the Nolo Press book on prenups and go through it. There are at least 3 different views of what marriage is legally in the U.S. (basically, did the law come down from English, French or Spanish traditions), and the conversations about what marriage means to you in the context of those three different legal interpretations is extremely good conversation starter.
Highly recommend that process.
posted by straw at 4:50 PM on June 1, 2016 [4 favorites]
Highly recommend that process.
posted by straw at 4:50 PM on June 1, 2016 [4 favorites]
I am a fan of the prenup if for no other reason than that you can plan for the dissolution of a marriage at the time when you have one another's best interests at heart (rather than at the point where you actually want to kill one another.)
This. And I've heard of people trying to use prenups not just in the conventional "protect significant assets" way -- but also to use asset distribution (or even custody) as a carrot/stick to reinforce the behavior they *hope* they'd abide by even when considering ending the marriage or when actually untying it (for example, a party that refuses to attend counseling may forfeit a significant chunk of shared assets). Though I have zero idea whether that's legally enforceable and rather suspect it depends heavily on jurisdiction.
posted by wildblueyonder at 5:12 PM on June 1, 2016
This. And I've heard of people trying to use prenups not just in the conventional "protect significant assets" way -- but also to use asset distribution (or even custody) as a carrot/stick to reinforce the behavior they *hope* they'd abide by even when considering ending the marriage or when actually untying it (for example, a party that refuses to attend counseling may forfeit a significant chunk of shared assets). Though I have zero idea whether that's legally enforceable and rather suspect it depends heavily on jurisdiction.
posted by wildblueyonder at 5:12 PM on June 1, 2016
If you're both warm to the idea, do it. It's only a problem if one party thinks it's a great idea (it's a great idea) and the other doesn't.
I met my partner while he was going through a not-vicious, but contentious and vvvvvery prolonged (we're talkin' years!!!) divorce. You're goddamned right we signed a prenup, because (as others mentioned) it says that we agree to certain limits on things like delays, conditions, and terms of a divorce. We don't want it to happen, and having the prenup isn't going to make it happen, and it's a done deal that we ideally won't ever have to think about again.
posted by late afternoon dreaming hotel at 5:40 PM on June 1, 2016 [3 favorites]
I met my partner while he was going through a not-vicious, but contentious and vvvvvery prolonged (we're talkin' years!!!) divorce. You're goddamned right we signed a prenup, because (as others mentioned) it says that we agree to certain limits on things like delays, conditions, and terms of a divorce. We don't want it to happen, and having the prenup isn't going to make it happen, and it's a done deal that we ideally won't ever have to think about again.
posted by late afternoon dreaming hotel at 5:40 PM on June 1, 2016 [3 favorites]
You may or may not need a prenup, but you know what you do need? Estate planning (at the very least wills, medical powers of attorney, etc.)
And, while you can DIY all of that estate planning type stuff, why not kill two birds with one stone and find a good family lawyer who can help you draft mirrored wills and maybe figure out some pour-over trust stuff for you and also advise you on what effect a pre-nup in your jurisdiction would have abroad (at least to a general degree -- most estates and trusts lawyers aren't international law experts).
posted by sparklemotion at 6:14 PM on June 1, 2016 [3 favorites]
And, while you can DIY all of that estate planning type stuff, why not kill two birds with one stone and find a good family lawyer who can help you draft mirrored wills and maybe figure out some pour-over trust stuff for you and also advise you on what effect a pre-nup in your jurisdiction would have abroad (at least to a general degree -- most estates and trusts lawyers aren't international law experts).
posted by sparklemotion at 6:14 PM on June 1, 2016 [3 favorites]
A good family lawyer who stays on top of her stuff should have an idea of how to make a prenup as portable as possible. Even judges in jurisdictions that don't recognize the authority of a foreign prenup may choose to refer to it as a guide to the parties' intentions.
The lawyer you consult can also give you a better idea than your friend about what the default law would assume for you. For example, your fiancé's incoming student debts might be treated very differently in a community property versus non-community property state. In my state, inheritances are treated as separate property by default, until and unless they are commingled with marital property. How does commingling work and how could you avoid doing it by accident? Well that family lawyer in your jurisdiction is the best one to guide you through that.
I'm a fan of the prenup process even in cases where a prenup would not call for a meaningfully different outcome than (current) default law in your (current or expected) jurisdiction. One good way to do it is to work with a mediator on the document and then each have your own lawyer review it. It doesn't have to be super expensive.
Even if you consult a lawyer and end up not getting a prenup, they could still give you ideas for how to structure your finances to be most likely to get the outcome you envision. So even if you ended up getting the actual divorce abroad, if your property is held in the US, an American court might have jurisdiction over property division even if the foreign court has jurisdiction over the divorce.
Potentially even more valuable than any prenup is familiarizing yourself with the legal repercussions of the contract/status you are about to undertake. If you don't write a prenup, you are effectively accepting the legal contract written by the state. Doesn't it make sense to 'read' and understand it? And if you do end up moving abroad, doesn't it make sense to, when making decisions about where to move, understand and factor in your legal status in other jurisdictions?
posted by Salamandrous at 7:02 PM on June 1, 2016
The lawyer you consult can also give you a better idea than your friend about what the default law would assume for you. For example, your fiancé's incoming student debts might be treated very differently in a community property versus non-community property state. In my state, inheritances are treated as separate property by default, until and unless they are commingled with marital property. How does commingling work and how could you avoid doing it by accident? Well that family lawyer in your jurisdiction is the best one to guide you through that.
I'm a fan of the prenup process even in cases where a prenup would not call for a meaningfully different outcome than (current) default law in your (current or expected) jurisdiction. One good way to do it is to work with a mediator on the document and then each have your own lawyer review it. It doesn't have to be super expensive.
Even if you consult a lawyer and end up not getting a prenup, they could still give you ideas for how to structure your finances to be most likely to get the outcome you envision. So even if you ended up getting the actual divorce abroad, if your property is held in the US, an American court might have jurisdiction over property division even if the foreign court has jurisdiction over the divorce.
Potentially even more valuable than any prenup is familiarizing yourself with the legal repercussions of the contract/status you are about to undertake. If you don't write a prenup, you are effectively accepting the legal contract written by the state. Doesn't it make sense to 'read' and understand it? And if you do end up moving abroad, doesn't it make sense to, when making decisions about where to move, understand and factor in your legal status in other jurisdictions?
posted by Salamandrous at 7:02 PM on June 1, 2016
Yeah, even if you don't really have a lot of assets/debts to worry about, having it all down on paper, even if it's just to say "we'll pretty much just keep our own stuff" will make everything much easier if you do end up separating somewhere down the road.
Nthing estate planning/writing a will as being similarly, if not more important than a prenup. I signed up for GYST recently to get started on the process, and it's been very helpful!
posted by helloimjennsco at 6:45 AM on June 2, 2016
Nthing estate planning/writing a will as being similarly, if not more important than a prenup. I signed up for GYST recently to get started on the process, and it's been very helpful!
posted by helloimjennsco at 6:45 AM on June 2, 2016
If one of you has a career likely to be much more lucrative than the other's, or a prospect of a large inheritance, a prenup could be good. Prenups are bad at providing for the unexpected because the party who ends up on the wrong side can argue quite reasonably that (s)he couldn't bargain intelligently about it.
I do like the idea that you could contract narrowly to pay off the top her half of the amount of your school loans repaid during marriage as that cash would otherwise have accumulated as a divisible asset.
posted by MattD at 7:14 AM on June 2, 2016
I do like the idea that you could contract narrowly to pay off the top her half of the amount of your school loans repaid during marriage as that cash would otherwise have accumulated as a divisible asset.
posted by MattD at 7:14 AM on June 2, 2016
One of the things I was told when going through the process of drafting a co-hab agreement is that these documents can get stale and you need to plan to revisit them and we have a review timeline in the document. It was useful as part of the overall estate planning process.
posted by TORunner at 7:37 AM on June 2, 2016 [1 favorite]
posted by TORunner at 7:37 AM on June 2, 2016 [1 favorite]
You've listed reasons you might want to, and and asked for reasons to do this, but I think you're asking the wrong question. Other than "it's a significant effort which might not turn out to be useful", is there an actual reason NOT to do a prenup?
Possible reasons would be if the discussion would be harmful to the relasionship (i.e. I'm telling you this is mine and I plan on never giving it to you, and you now think I don't trust you.) or if you plan on doing this so thoroughly and correctly that you'd spend thousands of dollars in legal fees, or if... umm... nope, I can't really think of a good reason not to.
That said, I didn't.
posted by aimedwander at 8:48 AM on June 2, 2016
Possible reasons would be if the discussion would be harmful to the relasionship (i.e. I'm telling you this is mine and I plan on never giving it to you, and you now think I don't trust you.) or if you plan on doing this so thoroughly and correctly that you'd spend thousands of dollars in legal fees, or if... umm... nope, I can't really think of a good reason not to.
That said, I didn't.
posted by aimedwander at 8:48 AM on June 2, 2016
One additional aspect to think about as you consider this is that while you say "comparable earning potential" you also say "children" and so one of you likely doesn't have comparable earning potential. That partner should not be penalised in retirement.
posted by DarlingBri at 2:55 PM on June 2, 2016
posted by DarlingBri at 2:55 PM on June 2, 2016
We did a pre-nup. It was great. It's expired now, but it served its purpose, which was protecting me for taking a lower-paying job in a foreign country to be with my spouse. It was also a very helpful process for us. We worked our way through this book and then we went to a lawyer to mediate and write it up. We didn't want to each get our own lawyer, and we managed to agree on everything. It cost us around $1,000. Even if you decide not to do it legally, working through the process will allow you to talk through so many important issues. Would do again.
posted by oryelle at 7:17 PM on June 2, 2016 [2 favorites]
posted by oryelle at 7:17 PM on June 2, 2016 [2 favorites]
Yeah, we wrote our own and it was about a two-week process and it was so worth it just to have a lot of difficult discussions right up front. Our assets and debts were pretty similar to yours back then, I think, and we were also on the way to an international move. I would absolutely do it again. Our original document sits in its own pretty folder, and I think both of us feel pride when we see it that we really put thought into what we were doing. I've recommended the whole process a bunch of times since then.
posted by lauranesson at 2:24 PM on June 4, 2016
posted by lauranesson at 2:24 PM on June 4, 2016
Who do you want deciding what happens at the (hopefully imaginary) dissolution of your marriage: you and your future spouse or a bunch of politicians?
posted by spindrifter at 3:07 PM on June 13, 2016 [1 favorite]
posted by spindrifter at 3:07 PM on June 13, 2016 [1 favorite]
This thread is closed to new comments.
posted by DarlingBri at 4:07 PM on June 1, 2016 [3 favorites]