Prenuptial agreement can smooth marital road

June 30, 1995|By ANDREW LECKEY

It's my money. Keep your hands off it.

That's the harsh sentiment that many Americans still attach to prenuptial agreements, those emotionally charged contracts entered into by about one in every 20 couples who walk down the aisle.

But times are changing.

Prenuptial agreements aren't just for glitzy entertainers or millionaires anymore. They can actually help ease some of the financial tensions associated with marriage, no matter what the size of the bank accounts involved.

It's a good idea to exchange personal financial statements anyway, since there should be no big surprises after the vows are taken.

You'll encounter enough money-related stress in the future without having to grapple with misinformation of the past.

Prenuptial agreements outline the division of assets and financial responsibilities in the event of divorce, legal separation or death of either party by spelling out intentions about issues such as alimony.

They particularly make sense if significant assets, a small business or putting a spouse through professional school are involved.

"A prenuptial agreement can sometimes decide upfront what religion the children will be raised in," explained Edward Winer, an attorney with Moss & Barnett in Minneapolis.

"I've handled other agreements in which one party puts in a clause that they will not smoke during the marriage."

About one in every five remarriages includes a prenuptial agreement, an acknowledgment of how messy matters could become when splitting family wealth among several sets of children.

"We're more likely to see prenuptial agreements with clients whose previous marriages didn't work out, so one must be careful to be sure that it doesn't become a Band-Aid designed to deal with all the wounds of a prior relationship," advised Dr. Howard Markman.

Dr. Markman is the co-director of the Center of Marital and Family Studies at the University of Denver and co-author of the book, "Fighting for Your Marriage" (Josey-Bass Publishers, San Francisco, 1994).

"There's a real problem if people approach these agreements as they would a business negotiation, trying to cut the best possible deal for themselves while ignoring the emotions and feelings involved," warned Richard Singer Jr., an attorney with Skoloff & Wolfe in Livingston, N.J.

Experts suggest allowing plenty of time to put together the agreement. If signed too close to the wedding date, it might be challenged later on grounds that it was signed under duress.

Each prospective spouse should have an attorney of his or her own choosing to ensure that both parties have equal voices. The procedure should never be done by one attorney, or by one attorney in conjunction with another who was recommended by that attorney.

Disclose all assets. Leaving out items could lead to later charges of fraud or having the agreement thrown out. Carefully come up with the accurate value of assets and, if necessary, bring in appraisers.

Don't co-mingle assets before marriage. Formulate agreements regarding pension fund holdings.

Realize that state laws vary. For example, there are nine community property states in which each spouse receives half of all property gained during the marriage, except for inheritance.

The price tag for the contract will vary.

Mr. Singer, for example, has handled complex prenuptial agreements for professional athletes at a cost of $25,000 but also simpler agreements for $2,500.

"It's driven by the issues you need to confront, the level of complexity and the hourly rate," Mr. Singer said.

It's possible to come up with inexpensive do-it-yourself prenuptial agreements using basic legal forms, but remember this is an important contract you want upheld in court.

The more professional and thought-out it is, the better the odds it will survive scrutiny.

It might not be a bad idea to first talk with an investment counselor.

"We often do what we call a 'dual client analysis' for $350, which views the individual assets of people not yet married but living together and sharing assets, so they can work out their financial concerns," said Vincy Stringham, certified financial planner with American Express Financial Advisors in Midvale, Utah.

He noted that some states subject individuals who have lived together for a period of time to the same laws as married couples.

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