It’s not uncommon for me to spend significant time each month with clients who are getting married – those who require me to put together a marriage agreement for them. What often surprises me is their preconceived notions about the “rules” inherent in even the most basic marriage contracts. Much of what they believe to be true is not true, so those who do not enter their marital union with such a contract argue about “things” to a great extent when their relationship goes south.
What I tell every customer is that tying the proverbial knot is another formal contract – a legal agreement – like the one they would sign if they became a business partner. But just like naïve business partners, some do not understand how the laws apply to them when the deal breaks up. And it doesn’t help if you have preconceived ideas – myths – about the “rules”.
There are myths about marriage contracts that circulate. In Part 2 of my marriage series, I’ll share the five most common ones:
Five Common Myths About Marriage Contracts
Myth # 1: I don’t need a prenup. I will deposit my income into a separate account and it will remain my separate property.
Without a marriage agreement, each person’s income (even if it is held in a separate checking or savings account) is considered jointly owned and shared 50/50. My first suggestion is that you make a list of everything you own – money in a particular account, heirlooms, real estate, works of art, jewelry … anything that has monetary value. For example, some of those heirlooms that you thought were yours may need to be given or sold to him / her / her if your ex receives a judgment against you. It is best to put these and other items on a list to give to your attorney before they do their first preliminary draft. Don’t forget to list all the pets you have. Film director John McTiernan endured a protracted lawsuit with his ex over the dogs they enjoyed in their home. They fought long over her property and custody. List everything of value. If your attorney doesn’t think an item or two is off the prenup, they’ll let you know.
Myth # 2: Marriage contracts are expensive
Compared to the monetary costs and emotional toll of a divorce process, a marriage agreement is far cheaper and well worth the money. A good way to think about a marriage agreement is that it is a small, one-time “insurance policy” for something that you never want to use. However, if you ever need it, you’ll be glad you have it. Buying a house or a car cannot be done without taking out an insurance policy because in the event of a disaster, one person could lose everything. While California and many other states require you to have insurance for cars, boats, houses, and so on, it is not a law to insure against possible divorce. If times change, it could one day be a requirement. Not a bad law as most divorce wars are about money.
Myth # 3: Marriage contracts are violated in court
While caution should be exercised, there are certain rules that must be followed from the start to ensure the agreement stands up in court. Although courts occasionally invalidate prenuptial agreements, they are usually those that have been prepared without the help of a lawyer or where only one side has been represented by a lawyer. if financial information was not obtained or was fraudulent; or where there was coercion where a partner felt he / she / she was forced to sign the agreement. If you have a properly drafted marriage agreement, legal representation on both sides, and no coercion, it is almost certain that your marriage agreement will stand up in court.
Another note, my suggestion is that you wait until you are comfortable with the terms and conditions of the marriage agreement before putting your signature on it.
Myth # 4: Marriage contracts are only for the rich
Marriage contracts are for everyone! Given the divorce rate, high legal fees, and the stress of divorce, a marriage agreement can benefit almost everyone. Even the simplest of marriage contracts challenge a point or two – those “things” that need to be kept separate. Some of these could include a retirement account, a married home, rare memorabilia (valuable baseball cards, rare coins, furniture … and don’t forget the pets). There have been numerous fights over animals in modern times, which can be brutal. Debt and liabilities must also be viewed as separate. If the terms of who owes what aren’t in your marriage agreement, you can be the party that ends. By the time you end a divorce (also called the amicable one), you already have a significant loss. Why supplement with resentments that can only be felt as you pay off someone else’s debts – ones you never did? Take a quiet moment to collect your thoughts. Do not hurry. Make a thorough list of not just assets but liabilities as well. Proceed to finalizing your list – carefully making it specific – and placing it in the hands of your attorney. He / she / she will appreciate you doing this. Your attorney will also know what items you might have left out (like the fancy refrigerator you pulled out of the apartment, abandoned when you moved in, or the expensive artwork on the wall someone gave you) . Many lawyers will give you a check-off list so you can make sure nothing is forgotten. Ask them if they have one you can work from. This list could be vital if you ever go to court to enforce your arrangements.
Myth 5: Prenuptial contracts cause problems in your relationship
It is smart and considerate to sit down with your partner and discuss both your financial plans and future money expectations – that is, identifying from the start who will take what if the union fails. Think of it this way: When a lot of couples split up, the split is usually not “consensual”. When people go their separate ways, and do so with great severity, which is very common with breakups, you certainly don’t want to add to the aggravation and havoc by arguing over your grandmother’s teacup – the one that has been in your family for four generations ! You are really doing each other a favor by drawing up the prenuptial agreement. If you really want a solid relationship, your first commitment should be to protect one another. That is the intent of a marriage agreement. It’s not just to protect yourself, it’s a responsible and loving way to show your partner that you care about him / her / her no matter what. It’s also extremely important if your upcoming marriage is a second or third and you both have children. Think about them. You are affected by every aspect of your breakup.
As you can see, there are far too many myths about prenuptial agreements – most of them negative and misleading. The intent of such an agreement is to protect the parties who enter into an agreement. Perhaps now you have a better understanding by getting a clearer picture of each of the five myths I have addressed in this article. By now you may be thinking that it all makes sense – having a “contract”, but how do you deal with your partner and prepare to apply for a marriage agreement without creating a rift in your relationship? I’ll address that in the next section of this series. In the meantime, start the list I suggested.
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