Prenup’s or Postnup’s, “What’s Fair”

Normally, when a couple is thinking about marriage, they are thinking about the wedding preparations, the ceremony, place of reception, table cloths, food, etc., but as couples are getting married later in life, more and more couples are thinking as well about prenuptials and sometimes postnuptials.  To start, a prenuptial is a marital agreement that is made prior to the marriage; a postnuptial is a marital agreement that is made after the marriage.  Both agreements basically layout the framework for the worst possible event in a marriage, “Divorce.”  They are basically used as a way to make sure that the assets that you have going into the marriage are the assets you have leaving the marriage.

Florida, like many other states has a theory of equitable distribution when it comes to divorce; the couple’s assets and liabilities (debts) are distributed equally between the parties.  This may or may not seem fair depending on each couple’s situation coming into the marriage.  When one party’s assets are significantly more than the other party, it may be wise to have a prenuptial agreement to protect the asset from equitable distribution if the relationship fizzles out. 

Recently, actors Katie Holmes and Tom Cruise were in the news regarding their divorce and it is alleged that they had a prenuptial agreement that contained monetary payouts at the 5 and 10 year mark.  Although both actors had plenty of money when they were married, we can assume that Tom Cruise had much more money that he wanted to protect and as such a prenuptial agreement was made and was most likely the reason their divorce proceeded so smoothly.  Whether you’re big shots like Tom Cruise and Katie Holmes or just regular folk with some assets to protect, it may be a good idea to invest some of your hard earned money in a prenuptial agreement because if not you will be exposed to losing a big chunk if your marriage goes sour.

The most difficult part of the prenuptial or postnuptial agreement is bringing up the subject to your significant other without the response that says “you are already thinking about divorce when we are about to get married and think I’m a gold digger.” The response should be fairness, it is fair to go into the marriage with each party keeping what they already had going into the marriage and should not lose it just because they were married for a time.  I have worked on prenuptial agreements which are so one sided that it doesn’t matter how long the couple is married, financially it will look like they were never married.  Depending on what side your one, this will not seem fair, normally when one side is significantly better off than the other, you can input milestones where the other party will be entitled to certain benefits as time goes on as in the rumored payouts to Katie Holmes. 

The most important part of any prenuptial agreement is the transparency of the assets and liabilities of each party and that each has full and complete knowledge of what the other is giving up by entering into the agreement.   Any asset left out of the statement could invalidate the entire agreement so be careful not to exclude something unknowingly or knowingly. 

You can include the right to alimony, who leave or stay in the event of the filing of a divorce petition and other things people fight about in a divorce can be taken care of civilly when presumably the relationship is in or leading up to the honeymoon stage.  Recently, I worked on a prenuptial agreement wherein one party wanted language that if there was any suspicion of infidelity, the other would be in agreement to take a lie detector examination and if the outcome was that the person cheated, the prenuptial agreement would no longer be valid.  Although Florida is a no fault state and infidelity generally does not matter for purposes of divorce, the parties wanted this language put in which was perfectly ok.

Whatever you do, try to have the documents prepared with sufficient time prior to the marriage date so that you are not discussing these issues within weeks or days of your marriage which could cause more stress than you need or want at this supposedly glorious time in your life.