When and How to Use a Prenuptial Agreement?

Transcript

Hello, I’m Toni Ann Kruse, an ACTEC Fellow from New York City, and I’m here today with another ACTEC Fellow, Elizabeth Glasgow from Los Angeles, California. Today’s topic is when and how to use prenuptial agreements. Good morning, Elizabeth.

Elizabeth Glasgow: Good morning.

Toni Ann Kruse: So, what couples should have a prenuptial agreement in place before marriage?

Elizabeth Glasgow:  I get asked that question a lot and I think it’s a little bit of a funny question to ask because the truth is that all couples have premarital agreements once they get married. The question is whether or not they’re accepting the cookie-cutter, state-issued premarital agreement that comes right off the shelf and what they’re agreeing to simply by getting married, or do they want to have a really what is a customized agreement for them that takes into account who they are as a couple, what is unique about them, and really the assets that they have going into their marriage and what will happen during their marriage. And, for almost all purposes, I think isn’t customization almost always best? So, I’m a big proponent of couples making something that’s appropriate for them that takes into account their unique characteristics. But it does make sense, of course, certain couples are more unique than others and so many times we see customized premarital agreements used most commonly perhaps for couples who are bringing together a blended family, where maybe one or both of the individuals have children from a prior relationship, oftentimes couples who have a lot of assets already created before the marriage or those really wanting to be proactive in making sure they both understand the financial contract of their marriage.

Toni Ann Kruse: That’s a great way to think about it. I really like that approach.  And so in your view, what is the most important things for a prenuptial agreement to cover?

Elizabeth Glasgow: A lot of people think about a premarital agreement as, you know, dealing with the ultimate dissolution of their marriage if unfortunately, they’re not successful. That’s what most of the state law is based around and that’s what a customized premarital agreement would addresses as well. So the two main topics that will typically be included in that are: how to divide up assets, that’s both what one or both of the parties brought into the marriage as well as the assets that they’ve gotten during the marriage – whether it’s from their work, their investments, perhaps gifts or inheritances that they receive. And then the other big topic and one that a lot of people really do customize premarital agreement for is what we call alimony or spousal support– that sort of ongoing financial entanglement couples have if there’s a circumstance where one of them at the end of a marriage does need continuing financial support from another. It’s very common to see a premarital agreement shorten perhaps the duration or amount of that alimony and spousal support.

Toni Ann Kruse: That makes sense. Do you have any suggestions for how a client could raise the idea of a premarital agreement with their fiancé, and when in their relationship it would be appropriate to do so?

Elizabeth Glasgow: This is a really tough one because it sometimes can be a very tense topic. The discussion around premarital agreements, I think is really just a continuation of, hopefully, what’s a very healthy discussion around finances in general. I’m sure a lot of divorce attorneys would tell us that the inability of a couple to communicate about finances and what each person’s expectations are is a big leader to divorces, but if you are already having a lot of conversations about finances a premarital agreement becomes a natural continuation of that. It’s an opportunity to say, all we’re doing is establishing expectations for ourselves in this customized agreement.

Toni Ann Kruse: Right, so okay so they’ve had the awkward conversation they brought it up and all went well and so at what point should the couple then start engaging in the actual process where they find lawyers, start agreeing to terms, are discussing them at home? I mean really what is your what are your thoughts on timing for that?

Elizabeth Glasgow: This is a really delicate balance because of course it’s happening at the same time that is perhaps the happiest part of your relationship–you know the excitement of going from being a couple to getting married as a couple. So, from a timing perspective, we always want to be cognizant that don’t start too early, and you don’t start too late. So too early would be that if you’re you know not even engaged yet or perhaps have just gotten engaged and you’re already signing paperwork. The reason that is too early is that a lot might happen between the signing of the premarital agreement and the actual wedding that would have been material for the discussions and negotiations. Perhaps there’s a new job opportunity, an inheritance, something that really should have been taken into account and you miss the opportunity if you’ve done it too soon. You also don’t want to wait too late because you hate to have a circumstance where one of the couple feels like the wedding is days away and they don’t have a chance to really bring up points that are important to them because they’re worried about being embarrassed if somehow this means the wedding doesn’t happen or they feel a little bit bullied in the process if it gets too close. So, an ideal timeline is to really start the hiring of attorneys not long after the engagement, getting some of the key terms hashed out before the invitations go out, and definitely signing a couple of weeks before the actual wedding date.

Toni Ann Kruse: Great advice, thank you. What state law would you suggest a couple have apply to their premarital agreement? You know, we have couples all over the place. Let’s say it’s a couple that’s intending to get married in one jurisdiction and live in another, or they’re a couple who has assets and of all over the country, what jurisdiction would you or how would you advise them to choose a jurisdiction?

Elizabeth Glasgow: Absolutely, we don’t want the premarital agreement to discourage anyone from having a destination wedding. I know I love them. So, really it should be your home jurisdiction. Where do you plan to be a married couple, living full-time as you start your married couple life? That’s not to discount the fact that, of course, if you do have an expectation of relocating during the marriage that you’d want to make sure that an attorney in that other jurisdiction does take a look at the key terms of the agreement and that would be the same if you have significant assets elsewhere – have the home jurisdiction govern but still make sure somebody takes a look from another location.

Toni Ann Kruse: That makes sense. Thank you so much. This was a really helpful and practical discussion. I think this will be very useful for a lot of folks, but I think that’s all the time that we have for today, so, thanks for joining us, Elizabeth, and taking the time.