Our 9-Point Survival Guide
When approached correctly, a Prenuptial Agreement can be introduced and discussed rationally, revealing its benefits and practicality. Following the 9 points below, will help you put your actions in the most favorable light.
Everyone married in California, in a sense, already has a “Prenuptial Agreement”
California state law – referred to generally as California Community Law- will decide what is each person’s separate property, community property, alimony, and certain inheritance rights. So the bottom line is – everyone really has a Prenuptial Agreement. Unfortunately, the laws are convoluted and complex that often result in unknown and unintended consequences. What you are looking to do in a Prenuptial Agreement is to provide certainty in each person’s entitlements, which may be shared for most things.
Start early! Too often, one party drops the idea of a prenuptial agreement on the other party’s lap unexpectedly and at the last minute. Many people react differently and often need time to process the idea, get educated about what it means, talk with others, etc. Discuss your desire for a Prenuptial Agreement early in your relationship.
Explain what is important to you and the reasons you would like to have a Prenuptial Agreement. Perhaps it’s to protect a business, business partners, family real estate, retirement you have worked so hard to build up, or you experienced a distressing divorce. So whatever the reasons, discuss the idea of a Prenuptial Agreement early in the relationship or talk of marriage.
Put yourself in your Fiancée’s shoes
If you had no idea a discussion or idea of a Prenuptial Agreement was coming, put yourself in your fiancée’s shoes. Start small and be receptive to your spouse’s responses. Everyone reacts differently, many are practical thinkers, many emotional feelers. Some people may associate a stigma to a Prenuptial Agreement, thinking their partner has little trust that the marriage will succeed.
These feelings need to be addressed and topics need to be discussed. Actually the discussion and drafting of the Prenuptial Agreement resolves some initial negative, concerning feelings in several ways:
- Fair and Open financial disclosure and discussion of each persons’ rights – This provides a tremendous peace of mind for both parties in a marriage. With decisions about marital assets, support, etc. made in advance, you’ll both feel more secure knowing that your rights (and assets) are protected.
- Security in case of death of a spouse – Prenuptial Agreements can include what happens to martial assets in the event of death, as well as, divorce.
- When issues are resolved and recorded as in the Prenuptial Agreement, there are no surprises as to what each is entitled to.
Choose your timing and level of discussion
Friday night after a long, hectic week when everyone is tired is probably not a good time to discuss the terms of your Prenuptial Agreement. Set a date and time in advance so each of you can prepare. Outline what each wished to discuss so expectations are managed. Put a time limit on a discussion, and avoid the pitfall of tryingto discuss every detail at once.
If things get heated, empower each person to use a 5-minute time out flag, if need be.
When you begin discussing the Prenuptial Agreement remember Guide 5!
It is NOT ‘all-or-nothing,’ and DOES NOT have to be ‘all-or-nothing’ – Seek balance
Tailor the Prenuptial Agreement to meet your needs, BOTH OF YOUR needs. It does not have to be ‘all-or-nothing.’ Maybe you want to keep each of your retirements separate property during the marriage and let California community property law apply to everything else, except capping the maximum length of alimony payments at a certain time for both parties.
What are the top 2 or 3 of your must-haves? What are you really concerned about protecting? Focus on those points. Also, remember there are always several ways to accomplish your objectives. So if one objective seems offensive, talk through another solution or note the impasse with your attorney; the two of you can come up with a balanced solution.
Remain flexible and keep your eye on the big picture
What is it that you wish to protect?There is no need to battle every point…there needs to be give and take. If you get a major concession, ask what is important to your fiancée. Perhaps your fiancée is concerned about being taken care of in the case of your death. One concession may be to include a term life insurance policy in the Prenuptial Agreement during the marriage with your spouse as the beneficiary. Your Attorney should provide sound options for the two of you to achieve your goals.
Consider Mediation to resolve tough issues
If you start the discussions about a prenuptial agreement early and the communication lines areopen, you should be able to resolve most issues. If there are one or two points that you cannot agree upon, consider mediation. A neutral third party mediator can help facilitate discussion and assist with options to help you work to an agreeable solution.
Discuss the Prenup and work on the terms jointly throughout the process
Involve your fiancée in each step of the process to come up with the terms of the agreement. From discussing your goals, objectives, and reasons…to completing the Questionnaire to provide to the draft attorney. Your fiancé is your partner and should be treated as such. Use the conversation to strengthen your marriage.
Approach the Prenuptial Agreement conversation from the perspective that you to want to make your upcoming marriage stronger by discussing difficult subjects in advance. The more you discuss finances in advance, the less strain you may experience later. Documenting financial resolutions via a prenuptial agreement provides certainty and ensures that there will be no surprises or unintended consequences if things do not work out.
You are not locked in – you can make changes to your Prenuptial Agreement
Remember! You are not locked into the terms of the Prenuptial Agreement, nor should the Prenuptial Agreement be put away and forgotten. If your life circumstances change significantly, or you both have a change of heart on a term in the agreement; you can and should amend the Prenuptial Agreement.
An amendment to your Prenuptial Agreement needs to be in writing and should be completed by an attorney to make sure your intentions are accurately reflected and to make sure the changes do not impact any other sections of the Prenuptial Agreement you did not consider.