Great summary. A few things to add from my own experience: 1) if the prenup is signed close to the wedding (or announcement) it can be deemed void because of the presumed pressure to sign (it’s mentally tough to cancel the wedding when the date is set). 2) you both MUST use family law lawyers (separate ones duh) licensed in your state. If you decide to do it yourself and get it notarized, I guarantee you someone will find a technical reason to throw it out; intent doesn’t matter. 3) to ensure ‘fairness’ make the prenup in her favor and give up some of your rights. Hard to argue it’s not fair to her in that case.
As has been said many times here before, only reason to get married is if you want kids. That means you have to evaluate your future spouse not so much as a spouse but as a mother. You can divorce her, she can divorce you, but she will always stay the mother of your children. Make sure you completely understand her mental and physical health and history; she has no incentive to share the bad parts but you have a duty to know, on behalf of your unborn children. Talk to and observe the family members and their dynamics, childhood friends, evaluate her behavior with kids at any age. Is she caring? Does she have values that are compatible with yours?
Looking back, that focus is I think more important than the prenup. You can always find ways to make more money after divorce, you can bang younger and hotter chicks, but you can’t swap out the Mom if she’s a deadbeat.
Got most of it, just want to emphasize the following:
1) Assuming you are in the United States, a handful of states abide by “community property” rules (such as California). Essentially, this means anything created during marriage is community property or presumed community property. In this case, any reimbursements or proof something is your separate property is your burden to prove. Prepare a statement of net worth as of the day of marriage and keep all of your bank/brokerage statements, especially if you buy a capital asset such as real estate. If you want to get records from a long time ago, you may be out of luck - banks purge statements after 6-8 years (depending on bank). Set a reminder at the end of every year to pull every statement and keep them in a dropbox or something.
2) Prenuptial agreements are great. They will cut down on litigation. However, both parties must be represented by counsel in order for a prenuptial agreement to be valid.
3) The first thing that happens in the divorce is attacking of a prenuptial agreement, especially if a lot is at stake. I recommend putting something in that shows the two of you are “building a community”.
4) Depending on the state you live in, waiver of spousal support may not hold up in court. It all depends on your spouse and whether they can become self sufficient.
5) If you marry someone from outside of the united states and grant your spouse citizenship, and they subsequently file for welfare, you may be on the hook for the payments.
6) NEVER COMINGLE & MIX YOUR SEPARATE PROPERTY AND COMMUNITY ASSETS. EVER. SERIOUSLY. NEVER EVER EVER.
7) Divorce litigation is absolutely terrible because one person is paying for two lawyers (and if your case is complicated enough, two forensic accountants). A prenup allows you to have some type of roadmap so you don’t have to spend money on costly litigation.
Brain - Since it sounds like you're a lawyer. Do you recommend getting a postnuptial agreement as well? If so I would do it after kids to make sure if anything goes wrong i don't get killed and not legally allowed to see them
re: point 7) knew a guy who had 2 kids in the divorce. they both needed separate counsels. so he was paying for 4 (!!!) lawyers concurrently on his divorce. $2000/hr to blow up his life.
I plan on getting married this year she is much younger than me (14 years), so I would imagine I would get zero lenience in court upon divorce - especially from a female judge. I dont want to sound paranoid but millenials (my generation) taking over the judgeships in the next 5-20 years scares the hell out of me. I think you will see draconian rulings.
Are there even more aggressive routes you can take? I thought about getting married in California and never actually filing the marriage license (obviously telling her this), then signing a contract with her that she is entitled to 50% of what we save after marriage. I told her if we actually have children then we can legally get married as its fair because her value goes down (her words). Is this a viable strategy or am I crazy?
What do you mean by “putting something in that shows you two are building a community”?
And how do you mitigate the chance of the other party saying they signed the pre-nup under duress and pressure and trying to get it thrown out that way?
Brain - Thank you for the kind words! I'll be around to answer anything I can but feel this is a good basic overview. It can get more complicated but the more simple it is the better it is for all parties.
“ You sell some of your stocks to fund the purchase (from a pre-marital account). Once those funds leave the account to a joint account they are “co-mingled” and you’re done.”
To clarify, just the new joint account is now marital, or is the old pre-marital account now “tainted” and considered marital from this action?
Brain - my understanding is if you send account 1 to account 2 (account 2 is marital, account 1 is pre-marital). You have commingled account 2, so now if you get divorced and account 2 has purchased a home you can't claim "you funded it".
In general though if you co-mingle a single cent you're basically a fool.
Ie. Never do the above but provided an example to show how easy it is to blow it up
Great summary. A few things to add from my own experience: 1) if the prenup is signed close to the wedding (or announcement) it can be deemed void because of the presumed pressure to sign (it’s mentally tough to cancel the wedding when the date is set). 2) you both MUST use family law lawyers (separate ones duh) licensed in your state. If you decide to do it yourself and get it notarized, I guarantee you someone will find a technical reason to throw it out; intent doesn’t matter. 3) to ensure ‘fairness’ make the prenup in her favor and give up some of your rights. Hard to argue it’s not fair to her in that case.
As has been said many times here before, only reason to get married is if you want kids. That means you have to evaluate your future spouse not so much as a spouse but as a mother. You can divorce her, she can divorce you, but she will always stay the mother of your children. Make sure you completely understand her mental and physical health and history; she has no incentive to share the bad parts but you have a duty to know, on behalf of your unborn children. Talk to and observe the family members and their dynamics, childhood friends, evaluate her behavior with kids at any age. Is she caring? Does she have values that are compatible with yours?
Looking back, that focus is I think more important than the prenup. You can always find ways to make more money after divorce, you can bang younger and hotter chicks, but you can’t swap out the Mom if she’s a deadbeat.
Brain - these are all great points. Yes you can always make up for the money but you can't replace a terrible mother
Got most of it, just want to emphasize the following:
1) Assuming you are in the United States, a handful of states abide by “community property” rules (such as California). Essentially, this means anything created during marriage is community property or presumed community property. In this case, any reimbursements or proof something is your separate property is your burden to prove. Prepare a statement of net worth as of the day of marriage and keep all of your bank/brokerage statements, especially if you buy a capital asset such as real estate. If you want to get records from a long time ago, you may be out of luck - banks purge statements after 6-8 years (depending on bank). Set a reminder at the end of every year to pull every statement and keep them in a dropbox or something.
2) Prenuptial agreements are great. They will cut down on litigation. However, both parties must be represented by counsel in order for a prenuptial agreement to be valid.
3) The first thing that happens in the divorce is attacking of a prenuptial agreement, especially if a lot is at stake. I recommend putting something in that shows the two of you are “building a community”.
4) Depending on the state you live in, waiver of spousal support may not hold up in court. It all depends on your spouse and whether they can become self sufficient.
5) If you marry someone from outside of the united states and grant your spouse citizenship, and they subsequently file for welfare, you may be on the hook for the payments.
6) NEVER COMINGLE & MIX YOUR SEPARATE PROPERTY AND COMMUNITY ASSETS. EVER. SERIOUSLY. NEVER EVER EVER.
7) Divorce litigation is absolutely terrible because one person is paying for two lawyers (and if your case is complicated enough, two forensic accountants). A prenup allows you to have some type of roadmap so you don’t have to spend money on costly litigation.
Brain - Since it sounds like you're a lawyer. Do you recommend getting a postnuptial agreement as well? If so I would do it after kids to make sure if anything goes wrong i don't get killed and not legally allowed to see them
re: point 7) knew a guy who had 2 kids in the divorce. they both needed separate counsels. so he was paying for 4 (!!!) lawyers concurrently on his divorce. $2000/hr to blow up his life.
I plan on getting married this year she is much younger than me (14 years), so I would imagine I would get zero lenience in court upon divorce - especially from a female judge. I dont want to sound paranoid but millenials (my generation) taking over the judgeships in the next 5-20 years scares the hell out of me. I think you will see draconian rulings.
Are there even more aggressive routes you can take? I thought about getting married in California and never actually filing the marriage license (obviously telling her this), then signing a contract with her that she is entitled to 50% of what we save after marriage. I told her if we actually have children then we can legally get married as its fair because her value goes down (her words). Is this a viable strategy or am I crazy?
#6 Very important. I learned this one the hard way.
What do you mean by “putting something in that shows you two are building a community”?
And how do you mitigate the chance of the other party saying they signed the pre-nup under duress and pressure and trying to get it thrown out that way?
Can't tell if easy topic to understand or bullets really do make it easier...
great post.
Brain - Thank you for the kind words! I'll be around to answer anything I can but feel this is a good basic overview. It can get more complicated but the more simple it is the better it is for all parties.
Excellent article. This is the perfect follow-up for the old, yet timeless, WSP article on "Why you should never get married" !
Is there an archive of the old WSP articles? I missed that era but would love to dig through the archive..
first you get the money, then you get the power, then you get the gf, then you get the prenup 💯
“ You sell some of your stocks to fund the purchase (from a pre-marital account). Once those funds leave the account to a joint account they are “co-mingled” and you’re done.”
To clarify, just the new joint account is now marital, or is the old pre-marital account now “tainted” and considered marital from this action?
Brain - my understanding is if you send account 1 to account 2 (account 2 is marital, account 1 is pre-marital). You have commingled account 2, so now if you get divorced and account 2 has purchased a home you can't claim "you funded it".
In general though if you co-mingle a single cent you're basically a fool.
Ie. Never do the above but provided an example to show how easy it is to blow it up
Thanks for the useful post, Brain. Assuming that you should disclose all of your crypto holdings, correct? Even if this seems counterintuitive
Brain - yes all assets. Especially that since the vast majority buy off coinbase or an exchange it wouldn't be hard to track