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Should I Sign a Prenuptial Agreement?

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By Debbie DiVito, Content Manager, Women & Co.

In a Women & Co. blog post last month, I posed the question "Should I sign a prenup?" I didn't know the answer, so I went to the experts to find out. I spoke with Jeff Landers, a regular contributor on Forbes and The Huffington Post, as well as the President and Founder of Bedrock Divorce Advisors, LLC, a national divorce strategy firm that exclusively advises women who are going through, or may be going through, a financially complicated divorce.

Believe it or not, Jeff (who's been happily married for 28 years, I should mention) and I had quite a pleasant discussion about prenuptial agreements. I learned a lot, and I certainly got my answer. Want the quick version? Whether you and your soon-to-be-husband need to sign a prenup should really be decided on a case-by-case basis. But how do you know what makes the most sense for you in particular? Keep reading, and learn what Jeff Landers says you need to know to help decide once and for all: should I sign a prenup?

Prenups Defined
A prenuptial agreement is a contract signed by both parties before their wedding that details what their property rights and expectations (including alimony) would be upon divorce. A well-drafted prenup can "override" both Community Property and Equitable Distribution State laws and the courts will usually respect such agreements (which is one reason why they are so powerful).

By signing a prenuptial agreement, you and your soon-to-be-spouse can decide in advance what property -- the things you own, both tangible and intangible -- will be considered separate and what will be considered marital, as well as how marital property would be divided, in the event of divorce.

Prenuptial agreements don't cover child custody or child support, or other items that are difficult for a court to enforce. Some of the examples can get slightly humorous, but the important message is that if you want your prenup to hold up in court, don't burden it with things that are unrealistic for a judge to enforce (e.g., the number of times per week you ideally have sex with your spouse).

Making the Big Decision
Should you sign a prenup? If this question seems totally unromantic, that's because it is. A prenuptial agreement is more of a business arrangement and less of a romantic one. You're negotiating a contract, and your livelihood is potentially on the line, so it's important to look at this document as a business agreement -- your goal is to make sure you're protected.

You don't need to be a multi-millionaire for a prenuptial agreement to make sense. For example, you might own a summer home, or perhaps you'd like to protect property that your family has owned for years. Additionally, there are a few triggers that may indicate a prenuptial agreement is in order. You should consider signing one if, for example:

• Either of you has been married before and/or are bringing assets into the new marriage
• Either of you has children from a previous marriage
• You or your spouse-to-be makes substantially more income than the other
• You own your own business or part of a family business

But what if none of those things apply to you? What if you and your spouse-to-be have never had a previous marriage, don't own any property (or what you do own is of similar value), you both have about the same amount of money in the bank, and neither of you expects your net worth to equal $150 million? In that case, Jeff explains, you may not need a prenup. "If you enter the marriage on relatively level ground, and no one's making a fortune or expects to, then you might not need one."

If You're Already Married
Then again, things do change. If you haven't signed a prenup and circumstances change during your marriage so that you become concerned with protecting yourself, you may be able to arrange a postnuptial agreement. You can read more about postnups here.

Getting Started
If you decide to sign a prenup, contact a matrimonial or divorce attorney that specializes in writing this type of agreement. Because prenups require negotiation, it's critical for you and your spouse-to-be to hire separate attorneys. That way, you'll both have the opportunity to be independently advised of your rights. According to Jeff, it's also important that your prenuptial agreement contain the following elements:

1. The agreement must be in writing
2. It must be executed voluntarily and without coercion
3. Assets and liabilities must be fully disclosed
4. The agreement cannot be unconscionable (or extremely unfair)
5. It should be executed by both parties, preferably in front of witnesses
6. It should be in a recordable format (for example, a real estate deed)

About the Author:
As Women & Co.'s Content Manager, Debbie is responsible for creating original editorial content for Women & Co. In her role, Debbie couples more than seven years' experience supporting clients in the financial services industry with her passion for writing about important financial concepts in a way that is both unintimidating and fun. Debbie is a Certified Public Accountant, has undergraduate degrees in Finance, Multinational Business Operations, and Spanish from The Florida State University, and holds a Masters degree in Accounting from The University of Virginia.