Not even Cupid will put arrows in a good prenup

Agreement: A prenuptial agreement turns into a treasure if a couple happen to experience major difficulties, and it can always be torn up if they happen to get along.

Dollars & Sense

October 03, 1999|By Mark Guidera | Mark Guidera,SUN STAFF

Pop singer Michael Jackson's and his new fiancee's is the latest grist for the tabloids. Donald Trump and Marla Maples' pre-wedding deal, of course, was the stuff that kept Manhattan gossip fires burning. And the details of Oklahoma couple Rex and Teresa LeGalley, in which stipulations such as what brand of car fuel they were allowed to buy, were so bizarre as to make even hardened lawyers wonder how far the marriage vows could be stretched.

The question, then, is do you need a prenuptial agreement? And what should it include if you do decide to have one drafted?

Increasingly, say financial planners and lawyers, prenuptial agreements are part of the dialogue, and not just among the mavens of Wall Street and Hollywood Boulevard.

The legally enforceable document is being seen with greater frequency among couples entering their first marriages.

Among the reasons: A booming economy has created a class of wealthy professionals, executives and entrepreneurs -- women as well as men -- with significant assets early in life.

Also, heads of family businesses are urging sons and daughters with roles or stakes in the business to get "prenups" to protect family financial interests from legal challenges should the marriage go sour or their offspring die.

Financial planners and lawyers say such an agreement probably isn't needed in first-time marriages in which neither partner has "significant" assets, and those assets are more or less equal. Young, first-time married couples tend to merge assets -- bank accounts, home ownership, etc. -- over time anyhow.

What qualifies as "significant assets" is a little difficult to define, say financial experts, but a rule of thumb is a net worth of $250,000 or more.

The more that's at stake, the more beneficial a prenup might seem.

Marriage counselors and lawyers warn that for some, raising the issue of a prenup might create such distrust and tension that it scuttles the engagement.

"I've seen prenups get in the way of relationships," warned Don Mering, a Baltimore lawyer with Ober, Kaler, Grimes & Shriver who specializes in estates, trusts and wills and who chairs the estates and trusts division for the Maryland State Bar Association.

William Kissinger, president of Kissinger Financial Services in Lutherville, said that as a rule of thumb a prenuptial agreement should be considered if:

One of the marriage partners has assets that are significantly higher than those of the other.

Both partners have "significant" assets.

A family business or estate might be at risk.

One or both marriage partners have children.

"My view is you can always rip up the bloody thing five years from now if you find that you are going to spend your days in complete marital bliss," said Kissinger.

With divorce rates as high as 75 percent in second marriages, Kissinger advocates signing a prenup before the wedding. Signing after the wedding bells could classify it in the courts' eyes as an entirely different contract.

He advises his clients, 67 percent of whom are women, that prenuptial contracts can be "extremely important" documents, if for nothing else than for estate and tax planning purposes should they die.

A prenuptial agreement "spells out in detail what assets are co-mingled and which are separate," said Kissinger.

Thomas Grzymala, president of Alexandria Financial Associates, a money management firm in Alexandria, Va., believes that prenuptial agreements are a must for wealthy individuals who have children and are entering a second or third marriage.

For one, he noted, prenuptial agreements can spell out exactly what will go to a surviving spouse and what estate assets will go to surviving children.

Mering, the Baltimore wills and estates lawyer, said prenuptial agreements should have several key elements.

First, each partner should be represented by separate lawyers. "To me that's imperative," said Mering. "Having each partner separately represented weakens any attack on the document later if the marriage fails." Or, as the old lawyer joke goes, love knows no bounds and neither does a good divorce lawyer.

Another key element to forging an agreement capable of withstanding court challenges is fair and full disclosure of assets -- a detailed account and valuation of all property from bank accounts and homes to stock holdings and death benefits, Mering said.

Failing to disclose property assets has lead to some prenuptial agreements being thrown out as invalid by courts.

Another key area to address in the agreement, say lawyers: Which state has jurisdiction over the agreement.

Unlike estate and will documents, prenuptial agreements are not required to be filed in court to be legally binding.

So couples drafting a prenuptial contract should note what court they want to hold jurisdiction over the document, particularly if they, say, live in Maryland, but plan to get married in Hawaii.

"The bottom line is the greater care you take in putting the document together, the less likely it will be challenged in court later," Mering said.

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