How to Prepare for THAT Prenup Conversation

So it’s your wedding day and you’re about to say those two little words. There’s something niggling at the back of your mind that you’ve haven’t got around to organizing… Food? Ordered and paid for. Presents for the in-laws? Check. Prenup? Ah. Oops.

It’s easy to put off important elements of wedding planning that are less fun. I’ll admit I’d much rather go to a cake tasting than talk to my intended about money and what happens in the eventuality that we decide to go our separate ways, and I’m a divorce attorney! I have more uncomfortable conversations with people by 10am than most people have in a month.

You can always do a postnup but let’s be honest, when you’re back from honeymoon and the tan’s starting to fade, it’s easy to get caught up in the stresses of everyday life. From a practical legal standpoint the enforceability of a postnuptial agreement is far more controversial in New York than a prenuptial agreement. And, it’s much wiser to be aware of your partner’s financial habits before getting hitched. If you’ve religiously paid off your credit card in full every month, it can be grating to see that your spouse has racked up thousands in interest thanks to their decision to make minimum payments.

So here’s how to bring up the topic, WITHOUT using the words, “By the way, when we divorce I’m keeping the house, darling.”

• Be straightforward. Just get to the point. Show your spouse that you’re behaving in a clear-headed and sensible manner about this potentially awkward topic. They’ll respect you all the more for it. Chances are, if they read the papers (or live anywhere other than a cave) they may be having the same thoughts, but were reluctant to bring it up.

• It’s all about timing. In the middle of a “heated discussion” about finances? Don’t throw the prenup into the mix just right now. Having lunch with the soon-to-be in-laws? Not a chat that Mom and Pop need to be part of. Remember when Carl and Ellie from Up (surely everyone’s favorite romantic movie?) drew up their prenup? Me neither. It’s not generally a conversation that comes up naturally when you’re dazzled with love. Do a little forward planning and set the scene. Plan an occasion when you’re both in a positive frame of mind, when you have the time and energy for an in-depth discussion. You might introduce it by talking about student debts or even your joint savings plan after the wedding.

• Avoid beginning the conversation with: “I want a prenup.” This is a sensitive subject and must be handled delicately so as to avoid arguments. After all, if you begin the chat by annoying your partner, you’re hardly likely to achieve the outcome you want.

• Blame me. Remember when you blamed your mom’s broken vase on your (completely innocent) friend? Or when the dog ate your homework? Sometimes it’s easier to take the heat off yourself. Saying that your lawyer recommended a prenup (and it’s completely true – I do!) can make the conversation easier.

• Remind your partner that ALL marriages end.  It may seem morbid to say it – but all marriages end: either in death or divorce. You don’t hope your spouse will die prematurely but chances are (if you’re responsible) you still had a Will prepared. Why? Because you don’t want the state legislature deciding your property rights when you die and belief you and your partner are in a better position to make those decisions together. A prenup is really no different. Why trust the legislature to decide your rights and obligations if you aren’t fortunate enough to die?  Perhaps remind your spouse that legislators are elected officials and, at present, as a result of the electoral democracy Donald Trump is quite possibly 11 months away from getting the nuclear codes.

• Reassure your partner. A lot. Let them know that your intention is to protect his or her financial independence, as well as yours. To keep the two of you, as a couple, in control of your finances and property rather than the Courts or the state.

• Be like a window: transparent. This is the time to be 100 percent honest with your partner. Often our thoughts about prenups have been shaped by our parents’, siblings’ or even friends’ marriages. Share this with your fiancé(e) so they fully understand that this isn’t the final stage of your dastardly plan to acquire all their hard-earned money and possessions. Be honest about what is important to you, and why.

• Use this as an opportunity to talk about expectations.  In the event the two of you split up you may be surprised at how much you share the same concerns. Who would keep the apartment? How would the one who leaves the apartment pay for movers or a security deposit? This is the kind of stuff you can discuss and include in your prenup. Take the fear of homelessness out of your marital anxieties. If there’s an economic disparity between you and your spouse you’ve got different concerns but they’re born of some of the same sensibilities. If you’re the “monied spouse” you want to know how much you would be “on the hook” for if the two of you split up. Most likely you aren’t suggesting if you break up your partner should be out on the streets eating cat food – but you don’t want him or her to be eating caviar while you’re struggling to pay bills. If you’re the “non-monied spouse” perhaps you want to ensure that it’s okay to sacrifice your career status to raise children or pursue other interests secure in the knowledge that your soon-to-be-spouse is taking care of business. You might not be looking for the marriage equivalent of a “golden parachute” in the event of divorce but you might be looking for some confirmation that you won’t leave the marriage with less than what you have when it started. There is likely room for compromise on these issues and perhaps having a discussion about what you both want and need financially in a marriage partnership is precisely the kind of thing two people considering getting hitched should do!

• Listen. It’s the best way of avoiding misunderstandings. If people would only use their ears as much as their mouth, the world would be a much happier place, trust me on this! Ask them their opinion, their hopes, and do some research together. Chances are, neither of you have much practical experience with prenups, so you can learn together.

• Don’t get angry. You might not get the response you want, but it’s important to stay calm. Your partner might not want to hear you. (In which case, it’s time to start working on those communication skills, folks.) They might be insulted that you’d even think of divorce. One the one hand, this is understandable, but it’s time to get real. Forty-five percent of marriages end in divorce. Being prepared is essential, for both of you.

• Be prepared to try again. So you didn’t get the result you wanted? Don’t give up and hope it all works out for the best. It’s important that your wishes are respected in this relationship too. Allow your partner time to cool off and re-evaluate your points. Consider the services of a mediator to help both of you air your thoughts, without things turning sour.

• Have faith. If you’re seriously considering marrying this person let me tell you, at the outset, it’s important that you two can have a difficult conversation when necessary. It’s important to have the ability to upset or disappoint your spouse when necessary to honestly express your needs and feelings. Start warming those skills up early before you get hitched. This is as bad a time as any to see that, if you’re doing it right, you can be scared or upset and still be very much in love.  

Financial conversations can be hard when you’re in a relationship, whatever stage you’re at. Bringing up a prenup needs you to have lots of hats on – your sensitive hat, your rational hat, and your honest hat. But the good news is it can be done without causing offense. Better, it can help you build trust and solidify your relationship. If you need it – great, you’re covered. And if not, then you two lovebirds have begun your lives together in the best possible way – by being open and honest about the tricky stuff. It’s win-win. It’s better to have a prenup and not need one than to need a prenup and not have one.  

Respectfully,

James J. Sexton

Do You Need a Prenup?

Short answer: Yes!

Long answer: A prenup, or prenuptial agreement if you’re being fancy, is a contract between two people who are getting married. Every prenup is different, but usually it lays out what will happen with regard to property and spousal support if the impending marriage ends in divorce. What exactly is covered and the terms to which clauses are held vary for each couple. Some prenups can even have so-called “sunset provisions” that allow for the prenup to expire after a certain amount of time.

Is it romantic to talk about both wedding invitations and who gets the boat when this relationship bites the dust? No, not particularly. But you live in the real world not a rom-com starring Kate Hudson, so you have to plan for the future. And getting this stuff out of the way when you’re super duper in love is a great idea. The alternative is fighting it out while you’re not particularly fond of each other, with no guarantee your assets will be protected, in what may become a very lengthy divorce battle. By the way, you guys have a boat?! Invite me over, I love boats! 

Prenups are not ironclad decrees that are followed to the letter, but they are a really good foundation to work from during a divorce. It’s recommended both members of the couple have legal representation through the prenup drafting process. By the time you’re both ready to sign, you’ll have a great grasp on all your financials and feel confident knowing you’ve done all you can to protect the interests of future you.

So how do you bring up the whole prenup thing to your fiancée? Calmly and in a businesslike fashion. Also, not at the wedding as the picture above suggests. Explain how practical it is to get this stuff sorted now and emphasize how you’ll laugh about this on your golden wedding anniversary surrounded by a dozen cute grandkids. Does having this conversation sound uncomfortable to you? It shouldn’t. Open and honest communication is the basis of a healthy relationship, so let how you deal with this whopper really solidify how strong your marriage will be.

And, at the risk of sounding unromantic, it’s important to keep in mind a simple fact: all marriages end. They either end in death or divorce. Would your fiancée agree you need a Last Will and Testament? Of course!  It’s the responsible thing to do.  A Will prevents decisions from being made about the disposition of your property by the State and Federal legislature (chock full of politicians – see my prior post on the prospect of President Donald Trump). A prenup prevents decisions from being made about the disposition of your property by those same politicians in the event of divorce. To quote 70’s rock icons Rush: “If you choose not to decide you still have made a choice.” 

Still not sure if a prenup is right for you? Here’s a quick quiz for you two love birds to help you decide.

• If I’ve got no big assets, should I get a prenup? Yes!

• If I make more money than my spouse, should I get a prenup? Yes!

• If I make less money than my spouse, should I get a prenup? Yes!

• If I have kids from a previous relationship, should I get a prenup? Yes!

• If I have a lot of debt or my spouse does, should we get a prenup? Yes!

• If I own a house, should I get a prenup? Yes!

• If I own a business, should I get a prenup? Yes!

• If I am going to get an inheritance, should I get a prenup? Yes!

• If I think prenups are unromantic and spoil the fairytale, should I get a prenup? Yes!

• If I am in possession of a magical lamp that houses a genie who grants wishes, should I get a prenup? Yes and tell me more!

Prenups are for everyone, not just celebrities in Us Weekly. So, ignore the misogynistic undertones of the rest of the song and listen to Kanye, “If you ain’t no punk, holla we want prenup.” And if you’re more of a Drake fan (me too), heed his advice and, “Make sure you hit him with a prenup.”

It’s an important investment in your future and with the right attitude and a good lawyer, it can be a painless process that will give you peace of mind. If you never need to use it, great! Those grandkids can shred it and make confetti for your golden anniversary party.

 

Respectfully,
James J. Sexton

P.S. – Are you already hitched sans prenup? Do not fret! You can always do a postnup, which is like a prenup except you can’t remember what color your wedding invitations were because it was so long ago.

15 Things You Might Not Know About Prenups In New York State

If you’re considering arranging a prenuptial agreement in New York, you should be aware of the legal issues around them. I’ve compiled an overview of the basics below. For a more in-depth look at your particular situation, please feel free to contact me to discuss.

Prenuptial Agreements in New York State

1. A prenuptial agreement (also known as an antenuptial agreement), is a contract entered into by two members of a legal marriage that usually describes the rights of each party upon death or divorce. This often relates to matters of finance and property.

2. A prenup often serves the interests of both parties, rather than only one party as is commonly perceived. For example, if one partner wishes to ensure the other receives more than they may be entitled to under New York law.

3. You should consider a prenuptial agreement if:

• You would like to clarify expectations upon the event of death or divorce
• You would like to be protected against loss of finance in the event of death or divorce, such as particular assets, a business, etc.
• You have a desire to pass on certain assets to children or grandchildren resulting from earlier marriages,
• You have children and would like to manage custody issues in the event of divorce through contractual means, or
• You wish to manage your finances through your own contractual agreements rather than by the state, in the case of either death or divorce.

4. In New York, without a prenuptial agreement the court will divide the property in a way that is considered equitable, which may be dividing it down the middle.

5. In New York, without a prenuptial agreement, if one spouse dies, courts typically follow the will of the deceased, although the surviving spouse is usually entitled to at least one half of the estate even if this goes against the will. A prenuptial agreement would circumvent this.

6. For a prenuptial agreement to be valid, it must be in writing, signed, and orally acknowledged before an authorized person as well as certified in writing.

7. Contrary to the name, prenups can also be entered into when a couple is already married.

8. In many cases, the less wealthy spouse will receive less under the prenuptial agreement than he/she would receive under the usual laws of divorce or wills, but they may also receive more, depending upon the agreement made.

9. An “escalator clause” in a prenup states an increase in the amount of assets or support given to the less wealthy spouse dependent on the length of the marriage or income following the agreement.

10. A lawyer is typically used in arranging a prenuptial agreement, usually employed by the wealthier party. While the less wealthy partner isn’t required to have legal representation, this is also advised, as the agreement is more likely to be enforceable if back-and-forth negotiations occur prior to the final agreement.

11. New York public policy strongly favors individuals deciding their own interests through contractual arrangements, even if this leaves one spouse with no property or support. For this reason, it is important for both parties to represent their interests in negotiations.

12. While child support issues can be treated in a prenup, the court is not bound by these and they will serve mainly as points of consideration.

13. The agreement must be considered fair and reasonable at the time of making, and cannot be considered unconscionable at the time of final entry of judgment.

14. If one spouse misleads the other concerning assets or finances, the prenup would be considered invalid.

15. If one spouse exerts excessive pressure on the other to obtain signing of the agreement, it may be rendered invalid. This is a reason to create a prenup well before the marriage date, as ones entered into on, for example, the day before a wedding would be subject to investigation of duress.

While this covers the basics of New York prenuptial agreements, it’s highly likely that you will benefit by seeking legal counsel on these matters. If you’d like to discuss your particular situation, please feel free to contact me.

Respectfully,

James J. Sexton