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Ask an expert: Should I get a prenuptial agreement?

NBC News logo NBC News 4/12/2019 Nicole Spector
Natalie Jantzi et al. sitting at a table: Couple getting financial advice © Weekend Images Inc. Couple getting financial advice

When two people get married, they're not just uniting their bodies, hearts and souls; they're also joining their financial assets. It's a terribly unromantic fact — and probably the last thing anyone wants to talk about at length when they first get engaged.

Questions like "Should we get a prenuptial agreement?" can be downright buzzkills.

But if you're planning to get engaged or already are, this is an important topic to unpack together.

We've set out to answer a number of questions you might have about prenups by consulting divorce lawyers and financial experts, along with a relationship therapist.

What is a prenup, exactly?

"It is a legal agreement entered into between two people before they are married that that can cover a wide variety of issues centered on property rights and assets," says Ike Z. Devji, of-counsel asset protection attorney in Phoenix, Arizona. "In addition to the traditional role that most people think of (dictating the division and distribution of a variety of physical assets and setting terms for any required spousal maintenance at divorce), pre-nups can also cover death, incapacity, estate planning, student debt, spousal support and a variety of other legal issues including the division and attribution of income earned during marriage."

What is the purpose of a prenuptial agreement?

There are many, but "one of the main reasons to sign a prenup is to deviate from what the law would provide in the event of a divorce," says Elysa Greenblatt, a divorce lawyer in NYC. "People often want to protect their assets from distribution and a prenup is the obvious answer. There are other reasons that might not come to mind as quickly [such as] if one party has a child from a prior marriage — it can be important to have a prenup so that the parent can support that child with marital income. Another reason has to do with the fact that divorce laws vary state by state. If you live somewhere that has laws of equitable distribution but you may move to a community property state, it is important to protect your assets and set how they will be distributed."

Russell D. Knight, a divorce lawyer in Florida, says that often people want a prenup so they can keep what they brought into the marriage, which the law typically already protects — it's when financial assets get commingled that things get complicated, and that, as Knight points out, "happens easier than you think."

"Buying a house together with just one person's money is commingling. Starting a business together using one person's capital is commingling. Moving money around more than a few times can even qualify as commingling," says Knight. "The longer you've been married, the more you are likely to commingle your assets [and have] non-marital assets turn into marital and, thus, divisible assets."

Aren't prenups just for rich people?

Nope.

"Typically, you think of a prenuptial agreement as being for those individuals with substantial means to protect," says Marcia Mavrides, a divorce attorney in Massachusetts. "This isn't always the case anymore, and in fact, many millennial clients hire Mavrides Law (my firm) to assist them with a prenup to protect them from their future spouse's student debt and visa versa. Even though these individuals may have significant earning potential, they realize that they should each be responsible for their own student loans. The best part is that these couples have discussed their financial situations in great detail before hiring attorneys to draft a prenup, so there are no unpleasant surprises."

How much does a prenup cost?

There's no fixed cost here, as it depends on both geography and how much negotiating takes place.

Kelly Frawley and Emily Pollock, both matrimonial and family lawyers in Manhattan, say a prenup in their pricey area ranges between $7,500 and $20,000 per party.

Vicki L. Shemin, a family law attorney and mediator in the Boston area, estimates that a prenup "would cost at least $2500 — but could cost tens of thousands of dollars."

If you're in a situation where your betrothed has the bulk of the assets (that would be protected under the prenup), then they should cover the costs of your counsel, which Frawley notes is common practice.

To get a better idea, you should absolutely meet with a lawyer for a consultation.

"A consult can be no fee, or it can be priced at an hourly rate," says Frawley.

How long does a prenup take?

Again, it depends. Typically, the more assets you or your partner bring to the table (and the more ardent your lawyers), the longer this will take.

"Ideally, you should start the prenup conversation with your spouse shortly after getting engaged," says Mavrides. "You and your fiancé should each find an attorney and begin the drafting process at least six months prior to your wedding."

You may even start exploring prenups before you get engaged.

"I had a case this year where we did a prenup before they got engaged," says Pollock. "The earner had a strong feeling about conditions under which he was willing to be married. He had to be sure [his prospective fiancee] agreed what marriage looked like before he was willing to do it."

The couple did end up getting engaged.

Do both parties need a lawyer for a prenuptial agreement?

While you might be able to find a lawyer who will draft up a prenup for both of you, this is highly inadvisable. So, to be safe, the answer is yes.

"One of the hallmarks as to whether a prenup is 'fair and reasonable' at the time of execution is whether a party had an attorney at the time the document was being negotiated," says Shemin. "Personally, if I am the mediator, or even if I just represent one party, I insist that the other party have counsel. This is the general practice. Parties can work with one mediator, or, one lawyer to do the drafting — but each party should/must (if not legally, then advisedly) have his/her own counsel. Since prenups are governed by state law, although this may vary state-to-state, it is generally considered the advisable and preferred practice."

Can prenups be thrown out?

As legal contracts, one would think that prenups would be set in stone, but in exceptional cases, they can be broken in divorce.

"Prenups are not ironclad and can be overturned on a number of circumstances," says Megan Gorman, managing partner at Chequers Financial Management. "If one party had a significant windfall, it would be prudent to speak with the attorneys who handled the prenup to understand your rights. There might need to be changes made to the prenup. Keep in mind things evolve and that the best course of action is to always be open with your spouse on finances."

Can I get a prenup online?

Technically yes, but you're likely wasting your time and money.

"Obtaining a prenup online is not advisable," says Gorman. "There are complex legal issues at play. You need to understand your rights. An online approach is risky and will likely have holes in the event of a divorce."

A 'postnup' is also an option

If entering into a prenup is not something you can afford in terms of time or money before your wedding, you can absolutely arrange a postnuptial agreement after you're married.

"The cost is the same and the process is the same [as a prenup]," says Pollock. "Commonly with a postnup though there's a specific purpose, or a live event that triggers re-examination, such as the purchase of real estate, where you want to specify how that would be distributed — or someone is thinking about leaving the workforce and wants to negotiate how assets should be distributed."

How can I bring up "prenup" (or postnup) without freaking out my partner?

This is perhaps another article in itself, but Dr. Fran Walfish, a relationship therapist in Beverly Hills, shares three quick tips on navigating this potentially touchy conversation:

1. Admit that this is a tough but necessary talk

"Tell your beloved intended that this is a hard conversation to have and that you want to make it as productive as possible. All of us struggle to hear difficult things. When you share and expose your vulnerability the other person feels safe to do the same with you."

2. Discuss in a peaceful environment

"Be sure you are in a quiet place with no distractions so you can focus on the other person."

3. Listen patiently and mindfully

"Be ready to accept anything the other person says. You don't have to agree but listen openly without becoming defensive. If you are shy and don't know what to say, offer compassionate reflection of what you hear the other person saying. This allows the other to feel heard, validated and accepted."

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