Wednesday, May 21, 2014

Should I Have a Premarital (Prenuptial) Agreement?

Divorce attorneys are much maligned as one of the factors that make divorce more difficult.  Sadly, too many divorce attorneys in fact do just that.  But, through a premarital agreement, a divorce attorney can help eliminate some of the factors that lead to divorce and, should divorce unfortunately occur, divorce attorneys can make the dissolution of the marriage much simpler and much less expensive through a premarital agreement.

Premarital agreements seem like relatively recent developments but they have ancient roots.  Premarital agreements are mentioned in one form or another in both the Old and New Testaments of the Bible.  So, with the wedding season again among us, some couples are doing more than shopping for wedding gowns, ordering flowers, and choosing reception venues. Many couples are discussing the terms of their prenuptial agreements.
You may be thinking: Is this planning a happy future together, or a divorce?

For some people it's a pragmatic idea, but for others, it chills the romance and threatens the chance of a happy marriage. One or the other partner may feel that suggesting a prenup shows a lack of trust and commitment, or attaches a higher value to assets than intimacy.

The profile of today's bride and groom has changed from the days when two penniless love-birds just starting out could easily tie the knot. Now many couples marry later in life, after becoming successful in their own careers. They may have acquired homes, significant financial assets, and hefty retirements. Children from a previous marriage may need consideration or they may want to avoid the financial sting felt from a prior divorce. And in any event, a protracted divorce settlement is no one's idea of a good time. Given these practical reasons, romance can still flourish if a prenup is approached in a sensible, yet sensitive manner.

Deciding whether a prenup is right for you and your future spouse is a personal decision, and every situation is unique. But, “timing," “wording” and specific procedural requirements are everything.
For the best outcome, try to get a general sense of your partner's approach to finances before becoming engaged. Talk openly and honestly about financial situations that you may have to deal with as a couple and express your expectations and anxieties about money.

When talking about a prenup, choose your words carefully. Phrases like "I want" and "I need" can sound as if you are focused only on yourself and your interests, rather than on the prenup as a mutually beneficial agreement, in place to protect both of you.

Once engaged, you will still have to work out the particular prenup details, but give yourselves time to enjoy your engagement. Don't talk about a prenup right after you become engaged, and don't wait too long to bring it up. You don't want your fiancé to feel that you are putting money before love, or that you waited until the wedding date was around the corner to bring it up-- both will dampen the romance.

If you decide on a prenup, each of you will want to have your own legal representation because you want both interests to be equally protected. In addition, there are very specific legal prerequisites to the enforceability of premarital agreements.  It is also usually best to retain attorneys who have no special connection to either of you; this keeps negotiations on a neutral keel. And, think about who you choose to represent you. Some lawyers are more sensitive than others in navigating the possible emotional waters.

A prenup is not about distrust, control, or impending doom; it's about planning and protecting finances for both of you. Once the prenup signed, let your lawyers keep the document. Go on your honeymoon, and forget the papers were ever drafted!

Although you will each need an attorney to ensure that your prenuptial agreement is enforceable if the time should ever come that it is needed, here are some additional resources that may help you evaluate with a prenuptial agreement is right for you and what it should contain in your unique case:

By: Robert R. Beauchamp
Law Office of Robert R Beauchamp
23120 Alicia Pkwy
Second Floor
Mission Viejo, CA 92692
Tel:  949-370-8000
Fax: 855-370-8100

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