Thinking of Getting (Re) Married? Then think about getting a prenup!
By Jonathan Bell

February bring Valentine’s Day and for some romance, roses and thoughts of getting married — or remarried. Easy. But getting divorced? Well, that’s another story. We all know someone who got wiped out financially because of a bitter divorce. That’s an even bigger risk for people who get remarried later in life after they’ve paid off their mortgage, built up a nest egg and produced a few heirs. For those individuals — many of them seniors — a prenuptial agreement (prenup) can be a good idea. Consider it the moment in your courtship when you and your intended can put finance ahead of romance.

Who needs a prenup?
Answer: You don’t have to be Donald Trump to need a prenup. In fact, over the last 20 years, they have become increasingly popular. Even people with relatively modest assets have opted for the protection of a prenup. Consider getting one if any of the following applies to you:

• You own a business
• You have assets such as a home, stock or retirement funds
• You have children and/or grandchildren from a previous marriage
• You’re wealthier or poorer than your future spouse
• You’re due to receive a large inheritance
• You take care of elderly parents

Here’s the key: approach the question of a prenup like a business decision. Couples often skirmish over who gets the pots and pans during the divorce. A prenup keeps those battles to a minimum, just as a well drafted will can keep peace among your heirs. In many ways, it is like writing a will for your marriage. In the event the marriage one day dies, you know who gets what.

And just like the case of an estate without a will, a marriage without a prenup means that a judge, not you, decides how your assets get divided when you get divorced. For example, without a prenup, a chunk of your wealth could end up going to your spouse’s children from a previous marriage instead of to your own. That’s why a it can be extra useful in a second marriage — and why it’s reasonable to tell your future spouse that your children and their inheritance deserve to be protected, regardless of how your marriage fares. In fact, a good prenup can help your children accept your new spouse much more readily.

The basics
Okay, enough theory. Here are the basics about a prenuptial agreement:

1. A properly drafted prenup explains how a couple’s assets will be divided in the event of a divorce and what a surviving spouse receive from the deceased spouses assets. (For the record, a will takes precedence over a prenup.) Often with older newlyweds, each spouse will simply waive all of his or her rights to the other’s assets and income in the event of divorce or death.

2. If a prenup isn’t properly executed, it is unenforceable. Most states are covered by the Uniform Prenuptial Agreement Act, which renders a prenup invalid if it is not agreed to by both spouses voluntarily, if It favors one spouse so heavily that it’s clearly unfair, or if either spouse failed to disclose all of his or her assets.

3. Lifestyle provisions may be written into a prenup, but they are not legally binding. Couples have been known to stipulate how many times a week they must have sex, who is to pay the bills, who takes out the trash and even what time lights go out at night.

4. A prenup can include a sunset clause rendering it ineffective after a designated number of years.

5. A prenup isn’t written in stone. A couple can modify it to their hearts’ content as their marriage evolves.

6. Legal fees for a prenup run between $2500 and $7000. If the same attorney represents both parties, the agreement may be invalid.

An ounce of prevention helps
Before you start drafting a prenup, you might do some due diligence on your future spouse. This is even more important for older individuals with significant assets. You should know if your future spouse has ever filed for bankruptcy, defaulted on a loan, carries excessive debt or has a criminal record. These are all issues that could wreck your ability to buy a home, get credit or start a business once you are married. Uncomfortable asking these questions? Then arrange for you and your intended to meet with a financial planner and let the planner ask the hard questions for you.

None of this is very romantic. But marriage is a business partnership — a legally binding merger of two people’s lives, including their finances. And just like any good business partnership, putting things down on paper is the smarter way to go.

Jonathon R. Bell is a partner at Duane Morris LLP. He is a fellow of the American College of Trust and Estate Counsel. A graduate of Yale College and Harvard Law School, Bell has been practicing as an estate planner for more than 30 years. You can reach him at jrbell@duanemorris.com