The time leading up to your wedding will be filled with love, excitement, and optimism. Whether you’ll be keeping things sweet and simple or going big with the ceremony and celebration, I hope you enjoy the fun experience of planning your special day. So, what role do prenuptial agreements play in this exciting time?
While it’s easy to become very focused on your wedding day, try to remember to allow time to plan for your marriage and all the days that follow! Couples who invest time in discussing the most important aspects of their future lives together are wise. The kinds of conversations you and your partner would have as you prepare to create a prenuptial agreement are so valuable—so make time for them, and don’t wait until the last minute to talk to each other or to your attorneys. One couple called me only 30 days prior to their wedding, so it became a mad dash to secure a second attorney to work with her soon-to-be husband (two attorneys are required to give the best possible chance of enforcement) and to put together the terms they wanted in their agreement. We ultimately met the 7-day waiting period between the final draft and signing, but I think it stressed them out a bit more than necessary to sign the agreement only a couple of days prior to the ceremony. Whew! Don’t let this happen to you. Allow at least 90 to 120 days to start meeting with attorneys to be sure there is enough time for all the exchanges of financial information and the details needing discussion.
Over my many years of practice as a family law attorney, I’ve had the privilege of working with countless couples at various stages of their relationships, and I absolutely love assisting them as they look forward to a loving marriage full of hope, commitment, and a true desire for theirs to be an everlasting union.
Some engaged couples are under the impression that prenuptial agreements lead to an admission that they’ll end up getting divorced. Nothing could be further from the truth. My experience is that when couples discuss sensitive financial and emotional issues ahead of time, they show one another respect for their partners’ pasts and an understanding of what they bring to the table now (literally and figuratively!). Then they make the smart decision to start their marriage with a prenuptial agreement that feels loving and fair to both of them, so their chances of ever having to deal with that document are quite diminished.
Regardless of your age or assets, a prenuptial agreement can be very valuable for your future. As you go through the process of preparing this essential document, you’ll both benefit from the confidence that comes from being honest and transparent about your finances, and you’ll enjoy clarity and understanding about the future goals you will pursue together. The best process is to work with a Collaborative Team of at least two attorneys who know what terms are important to include, and who have experience regarding the clauses that will be necessary to exclude (like custody terms), necessary to discuss (like how spousal support terms can be set aside by the court in the future), and necessary to include (like how to characterize your income during marriage).
DISCUSSION POINTS FOR YOU AND YOUR PARTNER
Here are four specific items I recommend that you discuss:
Financial Protection of Children from Prior Marriages
If one or both of you has minor children from a prior relationship, you’ll want to have specific conversations about making sure they are financially protected, and you’ll need to come to an understanding together about how marital assets will be divided upon your passing. Obviously, you’ll also need to consult with an estate planning attorney and set up a will and trust. But even before that, you and your spouse will need to have a meeting of the minds with regard to things like real property you acquire during the marriage and who will be the beneficiaries of that property if you die. Another tricky area can be a business run by one or both of you—who has rights to the business if you and/or your spouse pass away? You can easily see that this can get even more complicated if there are children from previous relationships and you have children together. The important thing is to plan and decide well ahead of time so there is no confusion, no resentment, and your decisions are clearly expressed and documented.
Joint Bank Accounts vs. Separate Bank Accounts, or Both
Will you have separate bank accounts, a joint bank account, or both? Will the funds in that account be deemed community funds, even if you unequally contribute to it? Even if your funds are in a separate account, they are deemed as community funds if the money in them was earned during the marriage. Where the money sits, who has access to it, and what it can be spent on are all topics of discussion best handled before you’re married. When you’re newly in love, you can’t imagine you’d ever argue over finances, but money is a terribly common reason for couples to fight and even divorce. If you’re thinking you’ll avoid future conflict by keeping separate checking accounts and dividing expenditures fairly (whatever that means to you), that might work, but it’s never as cut and dried as we think…because life is messy! You’ll have mutual expenses during your marriage that are necessary AND shared expenses that are enjoyable. Imagine, for example that you want to create a joint account where you save money for vacationing together or as a family, or perhaps for buying a gift for a mutual loved one (or maybe you’ll save together and decide later what to spend it on). What would happen to the money you’ve been saving if, heaven forbid, you decided to split up before you had a chance to use it the way you intended? It’s smart to cover such a scenario in your prenuptial agreement.
Income During Marriage, Future RSUs, and Bonuses
During your marriage, all income is considered community property in California, 50/50 owned no matter who earns the money. If one of you lost your job, or stayed home with the children by mutual choice, the other person’s income is 50/50 owned as community property unless otherwise agreed in a valid prenuptial agreement. The person who earns financial bonuses or RSUs through his/her employer may desire to have this designated as separate income instead of community property. These RSUs, or Restricted Stock Units, are a particular kind of stock that an employee does not purchase but instead is granted by the company and that vests (has value) later. RSUs are sometimes given to a new or promoted employee as an incentive to reach certain goals or benchmarks in the future. In this way, RSUs are very similar to a bonus. Where it can get especially confusing is when RSUs or bonuses are granted or promised before marriage but vest during the marriage or are granted during the marriage but vest after separation. Given that California courts don’t have one hard and fast rule for dealing with these in a divorce (for example, are they community property or separate property?), the best way for you to protect yourself and avoid unnecessary conflict is to decide ahead of time and document in your prenuptial agreement how you will deal with income, bonuses, and RSUs in the future. If you need help going over finances and understanding different types of investments as part of the disclosure process, there are neutral financial specialists in our Collaborative Group on this website who can help.
IRA Accounts and Support Concerns
When you’re in love and planning a future together, it’s hard to imagine you would ever split up, and if you did, you’re sure you’d be willing to let the other person walk away with everything—after all, you’re not marrying for money, right? Sometimes couples want to give up all their legal and financial rights in a prenuptial agreement as a demonstration of their pure motives, and while that might feel right, it can cause problems down the road should the marriage come to an end. For example, perhaps you’d like to include a clause in your prenuptial agreement that waives spousal support for the lower earning spouse. That sounds generous, but you should be aware that such a clause is subject to severe scrutiny by the court (under the current law when the agreement was written) and may not be enforced. Some couples have agreed instead to start an IRA account for the lower earning spouse that would be classified under the prenuptial agreement as that spouse’s separate property no matter what funds were used to create it. It’s important to know your legal options so that you can create agreements that create peace of mind for future concerns.
The bottom line is this: You and your partner might not know the ins and outs of how to navigate creating your ideal prenuptial agreement that will protect both of you and your children and stand up in court. While you’re basking in the glow of new love and preparing to embark on the next exciting chapter of your life as a couple, your mind can hardly fathom the types of financial issues you should both think about now as you plan your future life together. This is why it’s so important to work with a Collaborative Attorney who is experienced, knowledgeable, and will learn about your specific circumstances, concerns, and goals.
Planning for your future together by creating a prenuptial agreement is not “planning to fail.” It is a creative team process that blossoms into open communication that becomes the foundation for a very successful and lasting marriage. If you want further information or have more questions, please feel free to reach out to me or one of the other Collaborative Professionals in our Collaborative Practice North Bay group.
Jeanne Browne, JD is a Collaborative attorney and mediator practicing in Sonoma County. More information in her bio on the “Find A Professional” page.