While reliable data on divorce rates is hard to come by, everyone who has been through a divorce can confirm that it’s devastating—emotionally and financially.
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Discussing a prenuptial agreement with the love of your life is not easy, which is why so few people have them. It’s difficult to say, “I love you, but let’s talk about what happens if it doesn’t work out.” Nevertheless, it can be a matter of pay now or pay later.
A prenup is especially critical for seniors entering into second (or even third) marriages. By some accounts, a higher percentage of these marriages end in divorce. If you don’t have a prenup, the laws of your state may give your spouse certain rights in your assets at the time of your death. These laws may be totally inconsistent with your desire to protect your children or other heirs, and they can defeat provisions in your wills and trusts that are in conflict with them.
Here are some basic guidelines for those contemplating a prenup:
1. Be honest about your assets. You need to fully disclose all aspects of your financial history, including life insurance policies. Ideally, you should exchange several years’ worth of your tax returns. If you own, or have an interest in, a business, you should disclose the business’s returns as well. It’s important to be candid about your finances, because if you aren’t, it may be hard to enforce the prenup.
2. Seek professional help. A prenup is a very serious document with major consequences. If the time comes, you want to be sure it will be enforced. Each party should select, retain, and pay for his or her own attorney. Be sure the attorneys are specialists in family law, with vast experience in drafting prenuptial agreements in the state in which you reside.
3. Make sure the document is fair to both parties. Overreaching in these agreements is a red flag for the courts. One attorney tells the story of a couple who wanted to include a provision that if either the husband or the wife required long-term care, the infirm person would be responsible for all costs. Payments made by the healthy partner would be deemed to be a loan. It is very unlikely this provision would be enforced by a court. A prenup with such an unfair provision might not be enforced at all. Unfair provisions also encourage litigation.
4. Don’t sabotage your prenup. It’s important to keep the terms of the prenup in mind during your marriage so you will not do anything inconsistent with it. For example, if you intend to leave your home to your children, the title should not have a right of survivorship that would cause it to automatically transfer to your spouse.
5. Don’t lose the prenup. You can’t enforce a document you don’t have. File copies with your important estate-planning documents. Keep the original in a safe-deposit box at a bank (but be sure your heirs have access to it) or in the vault of the attorney who drafted it.
Dan Solin is a Senior Vice-President of Index Funds Advisors. He is the author of the New York Times best sellers The Smartest Investment Book You’ll Ever Read and The Smartest 401(k) Book You’ll Ever Read. His latest book is The Smartest Retirement Book You’ll Ever Read.