Can I Break This Prenup?

Even health insurance coverage can become a big issue in divorce, says Campbell. “That’s because most couples share the policy, and individual health insurance is next to impossible to find for many people these days.” 

All of this does not mean that prenups have no place in forming a more perfect union. In fact, it can help lay the groundwork for an open and honest communication that potentially can protect both parties’ futures, regardless of the long term success of the marriage.    

“Prenups can form a basis for discussion on important issues that otherwise might go untouched,” explains Burk. “After all, before weddings, who wants to rock the boat by talking about what will happen with grandma's inheritance or spousal support for someone’s ex? By using the framework of a prenuptial agreement, these topics can be discussed with a structure that doesn't feel that one person or the other is being stingy, or raising needless questions. What will happen with gifts and inheritances as they are received from family members? While state laws often address what happens in the absence of agreement, one of the couple may have different ideas than either what the law provides by default, or what the other person might be considering.”  

Clemens agrees. “The attitude toward marriage — and divorce — is so different from the past. These days, everyone should consider a prenup, particularly if they have significant assets, or certain reasons for having a prescribed exit strategy for the marriage. Financially or emotionally, no one can afford to look at marriage through rose color glasses.”  

Insights on how you currently interact with your intended spouse regarding financial issues helps your certified financial planner put your long-term needs into perspective, adds Susan Campbell. “For example, if you and your partner have different retirement goals, planning the prenup opens the door for a discussion on that topic. One partner may be the type that maxes out his 401K, and takes advantage of every retirement vehicle available, whereas the other may not save at all. In a divorce, the one who saves would want to get those savings protected in case of a divorce. You’re far better off having this conversation now than 20 years from now.”   

Here are some of the questions Campbell asks her clients:  

• How are you going to treat household expenses?
• Do you have a joint account for income, or separate?
• If it is a joint account, how much does each contribute, and who decides what, and when, funds are withdrawn?
• How much debt have you and your partner incurred, separately and together?
• What is your payment plan on the debt?
• How much will be saved each month? What are these funds eventually used for?
• Does one of you have a spending issue? 

“Although credit card debt is split between the partners during divorce, legally the credit card companies can still go after both of you — which affects your credit, too,” explains Campbell.

• Where will you live, if you both have property?
• If you’ve agreed to buy a new home together, what if any of it will be community property?
• What is your approach toward investments?  

“If one of you likes risky stocks, and the other plays it safe with CDs, you’ll have to consider who’ll manage your investments, and how they would be split,” warns Campbell.  

“Fear of the unknown is not a good reason to avoid the prenup. It is wise to know what your rights and obligations are going into the marriage,” says Daniel Burk. “Each of the couple should have a separate lawyer, in any event. Your lawyer can talk to you about your rights, with and without a prenup.”  

And while your lawyers will do the negotiating, explains Burk, “I highly recommend that the couple speak for themselves, perhaps using a mediator to facilitate and organize the conversation. Through the mediation, you can learn techniques that will help you with all your tough conversations throughout the marriage.”   

Josie Brown's articles have appeared in Redbook, AOL's Women Channel, Yahoo.com's Personals Channel and more. She is also the relationship editor at singlemindedwomen.com, and the editor of John Gray's internationally syndicated question-and-answer columns; and co-author, along with her husband, Martin, of "Marriage Confidential: 102 Honest Answers to the Questions Every Husband Wants to Ask, and Every Wife Needs to Know." She can be reached at josiebrownauthor@gmail.com.