Should you get a prenup? A family law expert weighs in
TEE LEE, CORTES HODZ FAMILY LAW & MEDIATION, P.A. • Oct. 4, 2022 • 6 min read
What we'll cover
Reasons to consider a prenup
Tips on how to have a prenup conversation
What to do if your partner refuses a prenup
Along with picking a venue, finding your dream dress, and all of the other fun aspects of planning your big day , wedding planning also includes some serious conversations about your future together as a couple. For many couples, that includes a prenuptial agreement (aka a prenup).
No one wants to think about the possibility of divorce before even walking down the aisle, but checking in with your spouse-to-be about a prenup can help protect you both. You might think that prenups are only for the wealthy, but the truth is people from a variety of economic backgrounds can benefit from this legal agreement.
To help demystify this difficult topic, we spoke to family law attorney Tee Lee to get her perspective on what couples should know when considering a prenup.
How do you know if you should consider a prenup?
Reasons for wanting a prenup can vary wildly. Sometimes couples come into a marriage having already purchased a house and want to address the appreciation (or depreciation) of the house over time. They may be trying to protect personal finances. Or maybe one or both parties have been married previously and had a messy divorce. All of these (and more) are valid reasons to consider a prenuptial agreement. Ultimately, the goal is to provide some peace of mind as they head into this commitment.
The most common instances I see are when one partner makes significantly more money than the other or when one partner has a business or other significant assets they’re bringing with them into the marriage. More people are waiting to get married, so they have more financial resources to bring into a marriage.
I would highly suggest speaking to an attorney in your area to discuss the consequences of not having a prenuptial agreement and what the prenuptial agreement can do to protect you.
Does a prenup make a divorce settlement easier?
Not necessarily, but a prenup does help define what is considered marital property (usually divided by a court), and what is non-marital property (assets or debts generally not divided by a court and what remains with an individual). From there, a couple’s assets can grow together. Having a clear benchmark can simplify some parts of the divorce process.
Bear in mind that prenups cannot address children, future children, or child support, all of which would be part of divorce proceedings.
Do you agree with the statement, “Prenups are like life insurance”?
Yes, that’s a fair description. Like life insurance, you hope you never have to use a prenuptial agreement, but it is there to protect you. I hope that the prenuptial agreement is the most useless document you will ever sign. But it can help you plan in the event of your death or the death of your spouse, similar to the concept of a life insurance policy. You can have the prenuptial agreement refer to a will or trust to control the division of your estate in the event of a death. A will would be much easier to update and revise as life circumstances, assets and income change.
What if your partner refuses to get a prenup?
Even if your betrothed is not interested in a prenuptial agreement, you can still take steps to protect yourself. For example, in some states, you can put funds in a separate bank account before getting married. As long as it is not co-mingled with any marital funds or marital property, it should be protected. If a relative passes away and leaves you money, deposit it into a separate account to provide the best possible chance for it to remain non-marital money. It can also help to have the person gifting you write a letter expressing that the gift is for you (not for you and your spouse).
Documentation is important. Anything you can do to establish your separate ownership will benefit you in the event of a divorce. Take photos and videos of your belongings (jewelry, heirloom items), and keep them in a safe space to prove that these items were with you before getting married. With retirement accounts (an IRA, 401K, or pension plan), get a statement of the funds in the account before your marriage date. In some states, without a prenuptial agreement, contributions into an individual retirement account are considered marital property, regardless of whose name is on the account. Proof of how much was in the account before your marriage date is the best chance to show what portion of your retirement account is non-marital and not subject to division by the court.
It also may be worth having a frank conversation with your fiancé or fiancée about why a prenup is important to you. There are a lot of misconceptions about what this legal document actually is or does. Talking it out can be very helpful for both parties.
Any tips on how to have the prenup conversation?
Start talking to your significant other about your money and finances early in the relationship. Disclose your salaries and where each of you stands with bills and debts you are bringing into the relationship. Discuss how you will handle expectations of purchasing big items and incurring large amounts of debt. Be honest with each other about your financial goals and priorities both individually and as a couple. The conversation about whether to get a prenup will be more natural and non-threatening if each partner understands the basic financial health of the other. Also, have the prenup conversation early. The process of preparing a prenuptial agreement can take time, and the final version needs to be reviewed and signed well before the marriage date.
Any tips on how to have the prenup conversation?
I could go on forever, but one surprisingly common sticking point in family law is the car. Think twice before cosigning to finance a car. If your relationship fails, you will both be obligated to pay what’s owed for the car when only one person may be driving it. That could negatively affect your credit if those payments were not made and may affect your ability to purchase another vehicle. It seems like a little thing, but it can cause some big headaches.
Find the right fit for your marriage
Before you start a new life with your spouse, make sure you are both on the same page about all the big issues — including finances. Getting a prenup can help protect you in the event of divorce and other unforeseen circumstances but that does not mean it is right for everyone. If you’re on the fence, seek professional legal advice, and carefully consider your options to decide if a prenup is right for you before you say, ‘I do.’
Tee Lee is an associate at Cortes Hodz Family Law & Mediation, P.A. in Tampa, Florida, working exclusively in the area of marital and family law. Most of Tee’s legal experience is in family law. She has also worked in public interest law for Three Rivers Legal Services, Inc. serving as an Americorps Fellow and had her own practice before relocating to Tampa, Florida. Tee has been with Cortes Hodz Family Law, P.A. since 2021. She also mentors high school students with Take Stock in Children and volunteers as a pro bono attorney at Bay Area Legal Services, Inc. For more information or to contact Tee, visit Cortes Hodz Family Law & Mediation, P.A.
Tee Lee is an attorney licensed only in the State of Florida. The comments and answers provided are for educational purposes and contain general information and a general understanding of the law in Florida but do not provide specific legal advice. The comments and opinions of this blog should not be used as a substitute for competent legal advice from a licensed attorney in your jurisdiction.
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