If you’ve been reading Divorce Lawyer Life for some time, you know that I think everyone should have prenup. However a lot of people ask, if I ask for a prenup doesn’t that mean I think my marriage is going to fail? When you hear prenup do you think that? I don’t see it that way and I challenge you not to either. What to know why?
We all know that marriage is not just flowers and diamond rings. It’s hard work too. I mean, you’re on a divorce law website. And dealing with money is part of that hard work. So what could be a better way to set up your marriage for success than getting your financial cards out on the table and ask for a prenup? As I always say, it’s much easier to negotiate when you like each other than when you don’t!
However, convincing you to ask for a prenup is only half the battle. Asking your partner for a prenup (and getting he or she to agree) can be tricky business if it isn’t handled the right way. Don’t start your marriage off on a sour note because of how you approached the preparation of your prenuptial agreement. Here are my tips for how to ask for a prenup without getting dumped:
How to ask for a prenup tip #1: Don’t wait until the last minute.
Have you heard the story of the woman in her wedding dress being handed a prenup while she’s putting on her veil? And if she doesn’t sign it there’s not going to be a wedding? Yeah me too. The truth is I don’t think this happens too often. However, people do often wait until the last minute to ask for a prenup. While I understand asking for a prenup is not as fun as picking out tablecloths and wedding cakes, you need to include it as part of your wedding planning and not treat it as an after-thought. There are a few reasons why.
First, perhaps you and your partner need to gather financial documents and look through them before you decide what you want your prenuptial agreement to say. What if you need to order statements or get your parent to find old trust or business documents?
Second, lawyers do have other clients. I know you’re shocked, right? Giving us only days to prepare a prenup (yes this has happened to me) may mean that they simply don’t have the time to get it done for you. Or get it done well.
Third, planning a wedding is a stressful time. You are only going to stress yourself (and your intended) more if you wait until the last minute to ask for a prenup. Is your partner already wary about signing a prenup? If so, waiting until only a few weeks before the wedding is not going to help warm them up to the idea and, in fact, will make it more likely that they’ll reject the idea (and even you) entirely.
So when should you ask for prenup? I would say at least 3 to 6 months before your wedding date. Pick a time after the excitement of the proposal has died down. Make sure that you are alone and not distracted when you ask for a prenup. Asking your partner at a crowded concert or in front of friends is probably not going to go over well. It also may not convey the seriousness of the conversation.
In addition, leave third parties out of the discussion. Some prenups that I have prepared have been at the request of one party’s parents to preserve family assets. And while that is valid reason to ask for a prenup, I think that it is best to leave the parents out of the conversation. Having your partner feel like they are being ganged up on by you and your family is not going to make the conversation go any better and will just make them feel defensive. Keep it one on one.
How to ask for a prenup tip #2: Offer to foot the bill.
Is your partner concerned about the cost of hiring a lawyer? Weddings are expensive. Who wants to spend money on attorneys when there are videographers and makeup artists to pay?
I get it. Those are certainly more fun things to spend your money on than a prenup. But that doesn’t mean that it won’t be money well spent. There are a few things you can do if cost is your partner’s main objection when you ask for a prenup.
First, you can have your lawyer do most of the work. This happens to me in a lot of my cases. I prepare the agreement and make all the changes. The other lawyer then simply reviews the agreement and answers any questions that his or her client has about the terms, resulting in minimal legal fees for the other side.
Second, you can offer to pay for the costs of the other attorney if you are in a financial position to do so. I have a lot of cases where my client has paid for both lawyers. However, be sure to check with your state to make sure that this is not considered a conflict of interest. In most states it is fine.
However, the other attorney will need to make it clear that while you may ultimately be the source of payment, you are not their client. This way if you ultimately do divorce, your now spouse can’t use this as a reason to not abide by the terms of the prenup.
You may be wondering, does my partner have to have their own lawyer? Can’t we save money that way? No, your partner doesn’t necessarily have to be represented in the preparation of your prenup for it to be valid. I’ve done many prenups where I have been the only attorney. In most states the other party simply just has to know that they have the right to have an attorney represent them in the preparation of the prenup. However, as always, make sure to check with your states rules before you or your partner goes unrepresented.
However, even if that law doesn’t require both parties to have attorneys, going it alone isn’t always the best idea. I do suggest that all parties at least have one meeting with an attorney to discuss the prenup. This way they can ask any questions that they have to just to make sure that they understand what they are agreeing to. I find that having the ability to ask those questions goes a long way if your other half is on the fence about the prenup in the first place.
How to ask for a prenup tip #3: Understand what can and can not be included in your prenuptial agreement.
I once had a client who presented me with a list of terms that he and his partner had agreed to be included in their prenup. While I applauded them for having this extensive discussion, many of the terms they had discussed could not be included in their agreement. So, before you ask for a prenup, you should ask: what can I even include in one?
Here are some things that you should include in your prenup:
- Listing the assets and debts that you both have as of your marriage and how you want to treat those assets if you get divorced;
- Treatment of certain business interests;
- Whether the increase in value of assets you had prior to the marriage will be considered marital property;
- Whether either party can ask the other for alimony;
- How you will divide real estate owned before or purchasing during the marriage;
- Will your prenup affect estate rights; and
- How you’ll treat pre-marital and marital debt.
Here are some things that you should not include in your prenup:
- Custodial rights of future children;
- Whether you will have kids at all;
- Child support obligations for future children;
- How you are going to pay your day to day bills (like who’s responsible for the cable bill);
- Credit scores; and
- Conditioning terms of the prenup on number of children, weight of the parties, or other non-financial factors.
Did you sense a theme from the above lists? I hope so. You should certainly discuss your desire for children and how you are going to pay your bills before you get married. And if asking for a prenup facilitates that discussion that is great. However, those topics should not be included in your prenup. Instead, my suggestion is to stick to discussing big picture financial topics only when discussing what you want (or don’t want) to be included in your prenup.
How to ask for a prenup tip #4: Discuss the terms before your partner sees them in the prenup or hears about them from their attorney.
One thing that I like about preparing prenups is that the parties still like each other. It’s a wholly different and more pleasant negotiation than a divorce settlement. However, there is one way to sour that happy discussion: failing to tell your partner what you want the agreement to include when you ask for a prenup!
It’s not enough to just ask for a prenup. You need to tell your partner what you want the agreement to say. Are both of you waiving your right to alimony? Have you built a business or a website that you want excluded from distribution if you get divorced? You need to tell them that yourself. Don’t hide behind your lawyer or worse, their lawyer, to give them the news.
Why is this so important? If you can’t be honest with your partner about what you want in your prenup then I think you need to evaluate whether you can have honest discussion with them about money and other topics at all. As I said before, marriage is hard work. Part of that hard work is talking about money and how you want to treat it during your marriage. If you can’t have that discussion now, how will you be able to have these discussions when things aren’t going so great?
Another issue I often see if that the other party will hide behind the excuse, “well my lawyer told me to put that in there. I didn’t want to but they made me.” Have you heard this one before? I have.
Yes, I tell my clients to put a lot of things in their agreements that they don’t think to include. That’s why they hire me. However, at the end of the day it is your marriage and your prenup. If you do or don’t want to include a term then it is your decision. So you need to own it and make sure that you discuss it with your partner when you ask for a prenup before they see it in the agreement.
How to ask for a prenup tip #5: Don’t forget to exchange financial documents before you sign!
Are you ready to show your partner your entire financial portfolio? The good and the bad (I see you Gap credit card debt)? You better be. A prenup is not just a generic document that discusses assets and finances in the abstract. So start gathering your financial documents. It’s show and tell time.
This is important for a few reasons.
First, in most states, the number one way to get a prenup thrown out is to prove that there was lack of full disclosure of the assets of the other party. What does that mean in plain English? If you don’t tell your spouse about all of the assets and debts that you have at the time they signed the prenup, they can argue that they would never have signed the agreement in it’s final form if they had known what your finances were.
While full disclosure does not require a CSI-like forensic dissection of your finances, it does require both parties to show their tax returns, bank statements, and list their assets and debts. Think of it like a financial statement that you would fill out for a loan or a mortgage application.
Second, this full disclosure requirement isn’t just great for complying with prenup rules. It’s also great for your relationship. Hey, remember that? You know, why you are marrying this person in the first place? Here’s how.
As I’ve said before, discussing money before your get married is very important. I’ve seen many marriages unravel because the parties were not on the same page about finances. And, with all big conversations, it’s better to have them before the big day than after. To be blunt, a lost deposit is cheaper than a divorce.
So when you ask for a prenup you are also asking to talk about your money. And by having to show your documents you can’t hide from the numbers. Do you have a lot of student loans? Are you mired in credit card debt? Still have the first penny you ever earned? Good or bad, both you and your partner need to know what you are working with.
Why is this so helpful? While you may ask for a prenup to keep your money separate, it actually allows you and your partner to get on the same page when it comes to your financial goals. The point of this exercise is not to unveil you or your partner’s secret money shame and dump them. Rather, it’s so that you know where both of you stand so that you can start your marriage with an honest understanding of your finances. It allows you to have conversation about your money goals and, if your finances are not in such great shape, come up with a joint plan to fix that. I can think of no better way to start a marriage than with clear eyes and this type of common goal.
Did you get all 5 tips on how to ask for a prenup?
Getting married is an exciting time. But don’t get swept away with the party planning and forget to talk about finances. Want a prenup but are too afraid to ask for one? You shouldn’t be. I promise your conversation will go a lot smoother if you keep my 5 tips on how to ask for a prenup in mind:
- Don’t wait until the last minute to ask your partner to sign a prenup;
- Offer to pay for the attorney fees if your significant other can’t afford it;
- Understand what can and can not be included in your agreement before you ask for a prenup;
- Discuss the terms that you would like to include with your partner before they hear about them from their divorce attorney; and
- After you ask for a prenup, get ready to provide your financial documents to the other side before you sign!
For more information about prenuptial agreements, check out my article on why everyone should get a prenup. Hey, if the Love is Blind cast is doing it . . . What do frozen embryos, start ups, and domain names have in common? They can all be included included in your prenuptial agreement! Don’t miss my article about the modern prenup how to treat these assets.
What’s next on the Divorce Lawyer Life?
How are you with money? Do you feel comfortable with personal finance topics or do you tend to shy away from those conversations? Did you let your spouse handle the money in your marriage? It’s okay, you aren’t alone. However, if you are newly separated, you need to learn how to manage your money yourself ASAP. Not sure where to start? Next week I’ll be talking about the 5 basic personal finance topics that every separated spouse needs to understand. It’s a must read.
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