Prenuptial Agreements

By Kristen Castillo

January 20, 2015 5 min read

No one wants to think about divorce but it can be a reality for many couples. So while you're planning for forever, it's still a wise decision to protect your interests.

Getting a prenuptial agreement, a legal document outlining who gets what if a divorce happens, doesn't sound romantic but it is practical.

"We all know the statistics: Nearly half of all marriages will end in divorce," says New York attorney Ann Margaret Carrozza, creator of "The Love Contract." "Having a prenup ensures that the couple dictates the terms of a split as opposed to some judge. A good prenup will ensure that both parties are treated fairly in the event of a divorce."

If a divorce does happen, a prenup is the foundation for who owes what.

"A prenuptial agreement can provide for financial agreement between spouses, including property income, and spousal support," says prenuptial agreement expert Dana Lowy, partner in Los Angeles-based Meyer, Olson, Lowy and Meyer. "It can protect against significant disputes on valuing and dividing a community property or separate property business in the event of divorce."

That means your prenup can outline who gets the house, the cars and your investments, like vacation properties and stocks.

"Parties involved can make financial agreements on anything other than those related to children," says Lowy, noting the husband and wife will have to make financial disclosures.

*Agreements for the Wealthy?

While it may seem that prenuptial agreements are only for high-profile business people, athletes and celebrities, the legal contracts can protect husbands and wives of all income levels.

In a survey of 256 adults conducted by research company Survata, over 73 percent say prenuptial agreements are not just for the rich. And nearly 88 percent of respondents think the groom should be the one to pay for the prenup.

"Prenuptial agreements are not necessarily for every couple, but I am a fan of them as a financial adviser," says Elle Kaplan, CEO and founder of LexION Capital, the only 100 percent female-owned asset management firm in the U.S.

For example, Kaplan says some women with more successful careers than their spouses get prenups.

"They wanted to separate the emotional decision of marriage from any financial implications," she says. "And it's not that a prenup has to mean that one person gets nothing in the event of a separation.

"Contracts are only as good as they are fair. Something like this is effective when both parties feel protected."

Carrozza says it's often more important for the less wealthy spouse to request the prenup, "to ensure that he or she is made whole in the event that the relationship doesn't work out," especially if that spouse is making sacrifices like putting education or a career on hold for the marriage.

She suggests adding what she calls "Love Contract" clauses into the prenup. These clauses can include financial goals and spending limits.

"We typically include penalties for infractions," says Carrozza. "These range from lighthearted sanctions such as household chores, to monetary penalties for violating one of the enumerated 'deal breakers.'"

*Postnuptial Agreements

Couples who don't get a prenup can still protect their interests after saying "I do" with postnuptial agreements.

Postnups are legal documents between a husband and wife that divide assets in case of divorce or death.

For example, Carrozza says, a postnup "can require the surviving spouse to enter into a prenup in a subsequent marriage," which would guarantee that assets from the first marriage pass directly to the children of that marriage and not to the new spouse.

"The postnup is often created in response to a bad behavior event," says Carrozza, explaining a postnup, "can establish a financial penalty for a repeat slip-up," such as cheating.

Prenups and postnups can be as simple or as detailed as you and your spouse decide. While it's best to never have to refer to the legal document, you'll be grateful to have it if you need it.

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