Complicated Prenup Advice

September 14, 2007 4:16 PM

Help with a complicated pre-nup, please.

So, my boyfriend and I are getting married. We currently live in Pennsylvania. My boyfriend is a resident of PA. I am a resident of Maine. We intend to move to Washington about five months after we get married.

We would like to get a pre-nup drawn up, which would involve holdings I have in Maine.

So my questions are:

1. Where do we get a lawyer? Should we get one in Pennsylvania, Maine, or Washington? Does it matter? Should we get two (or three) lawyers, and have them work together?

2. In all three states, does anyone have any recommendations? We want a good lawyer, but not a $1000/hour type.

Any other advice about pre-nups and what kind of things to put in there would be well appreciated. We have almost no knowledge in this area. TIA.

posted by nursegracer to law & government (4 comments total)

You and your fiance should each have individual counsel. That is most important- in some places, pre-nups have been set aside if one party can later show they did not have their own independent counsel.

It is common for parties to pre-nups to have property in multiple jurisdictions. You do not need a lawyer for each jurisdiction. Since you are currently living in Pennsylvania, I'd suggest that is a good place to start.

The whole point of a pre-nup is to set up your own agreement that overrides the laws of whatever jurisdiction you happen to be residing in should your marriage end in divorce. To that end, think about what *you* want. If the primary purpose of the pre-nup is to carve out your holdings in Maine from any later division of assets, that is pretty straightforward.

I've seen pre-nups run quite a range of scenarios:

1. Each party brings some assets to the marriage, and those assets stay with the party who brought them to the marriage upon divorce.

2a) One party has significant assets, one does not. Parties agree that interest in the marital property "vests" over a period of years, the formula working out to mean that after 20 years or more of marriage, each party gets 50%.

2b) One party has significant assets, one does not. Parties agree that in the event of divorce, party with no assets gets a tiny settlement, regardless of when or why or where parties divorce.

It's really up to you two to figure out what works for you.
posted by ambrosia at 4:40 PM on September 14, 2007

Well, how permanent do you think a WA residence will be? If you intend on moving around a lot, there's probably not a lot you can do, but if you think WA will be a permanent address it might be helpful to get a sense whether the WA laws might be different than the PA laws in any material area. I would assume a competent local lawyer (which i am not!) would be capable to undertake research and answer these questions.

Independent counsel is very important; independently chosen, independently paid for, and no conflicts of interest.

Here in NY, and I'm betting this is likely consistent across many states, real, true, full and honest disclosure of assets is key. If you think you stand to come into large inheritances down the line, disclose, disclose, disclose.

My family law course that dealt with the drafting of pre-nups, settlements, etc. was adamant in making clear that you cannot enforce any language that deals with future child custody issues, or the day to day "rules" of your marital interactions. It doesn't sound like you're leaning in that direction though.
posted by bunnycup at 4:50 PM on September 14, 2007

I basically second bunnycup. The laws of the state that you (hopefully never, ever) divorce in will either function as a gap filler for anything left out of a prenup, or will override it if the prenup is invalidated for any reason. If you think WA will be a permanent place for you then you should probably see a WA attorney to learn what the default rules are.
posted by gatorae at 7:21 PM on September 14, 2007

I think residencies of various states is not so complicated unless you are in a position where you think one state may be more/less advantageous to your position. What complicates things a lot more is complicated financial situations (business ownerships, inheritances, trusts, investments, real estate, etc.) and the disclosure and assessment of it all. Individual counsel is virtually required for the pre-nup to be enforced I believe, so that's almost a given. Any competent lawyer will not try to advise you both.

I think a key thing to keep in mind is that this legal necessity sets you up as functional adversaries even if you are currently of the same mind about the pre-nup and even if you have--through luck or hard work--found amazing lawyers. Even with the experienced and humanistic lawyer I had, there was an inherent sense of "sides". The lawyers my now-husband and I used recommended--variously and not in concert or by any joint approach--that we shouldn't talk about things between us at home; that we should talk about things at home; that we should lobby for X, Y, or Z; that we should view things in a context as compared to state laws; that we should view things as compared to the wealth of each person; that it was about having enough; that it was about having what was fair; that it was about doing the least amount necessary to write an enforceable contract ; etc., etc., etc. In the end it got very messy and I'm surprised we got through it.

If the two of you have very different financial backgrounds and resources, I think you should plan for those differences to become magnified and to overflow onto the other emotional facets of your life. Does sharing your money mean you're not in control? Do you see the boundaries drawn by the pre-nup as a sign your finace(e) doesn't really love you? Does talking about money in general make you nervous? Don't be resigned to it, but be cognizant that it may happen and consider how you might care for your relationship in the face of that. It would be a good time for both of you to articulate, to yourselves and to each other as honestly as possible, why you want a pre-nup, what you want to get out of it and how you will know the process has been successful (for some that's "we're married", for others it's "I avoided getting married to someone who didn't agree to my requests.") It's really a question about what you're committed to: the relationship or the money. If you come from more or less equal backgrounds and resources, I think that choice is much more muted and so the process will probably go more smoothly.

Some resources that I found helpful were:
- Equality in Marriage Institute (now defunct but still has a lot of info up online)
- Prenups for Lovers
- Talking to other people who had gone through the process to get a sense of where the "middle way" lies.
- Also, if equality in relationships is your thing, I noticed that gay and lesbian financial advisers often had references for lawyers who were committed to equitable and "win-win" situations, rather than conservative strategizing.

I can easily say that going through a pre-nup was one of the worst experiences of my life. It has irrevocably changed my relationship, in some ways for the better and in some ways for the worse. Hopefully YMWV (your mileage will vary).
posted by cocoagirl at 7:47 PM on September 14, 2007