Prenups Turn Mainstream

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When brides and grooms step up to take their vows during this summer's wedding season, many already will have signed off on a financial contract.

A growing number of newlyweds are signing prenuptial agreements, once considered the kiss of death to romance and the beginning of the end of a happy life together, according to lawyers who specialize in them.

These private, legally binding contracts are no longer lopsided agreements designed to protect the assets of the rich and famous, the J. Lo's and The Donalds of the world, from their less well-to-do spouses. Instead, the experts say, prenups can protect both parties and allow them to start a shared life with open, honest communication, the cornerstone of a good marriage.

Now they are used by middle-class couples to preserve assets for children from a previous marriage, by individuals marrying later in life for the first time who want to protect homes and businesses against divorce and by young newlyweds eager to shield one another from mounds of student and credit card debt.

"There's been an explosive growth in the last decade," said Arlene G. Dubin, a partner with Sonnenschein Nath & Rosenthan LLP and author of Prenups for Lovers.

While it's difficult to get an accurate count because they are private agreements that don't need to be recorded publicly, Dubin estimates current prenup usage at 10% to 20% of all marriages, and predicts it will soar to 50% by 2020.

Couples preparing to marry are growing increasingly savvy about the need to do more financial disclosure and planning before tying the knot, especially if they've walked down the aisle before, says Katherine E. Stoner, a certified family law specialist in Pacific Grove, Calif., and co-author of Prenuptial Agreements: How to Write a Fair & Lasting Contract.

"People who have been married realize how much of a business relationship marriage is," she says. "I like to tell people, 'You have a contract. It's just a question of whether you write it or the state writes it.' "

It's also a question of which state a married couple resides in. Both Stoner and Dubin say there is an upswing in prenups written to override what many younger couples see as an inequity in so-called "equitable distribution" states. Most states -- such as New York and New Jersey, but not California -- have equitable distribution laws that generally favor the family breadwinner with the greater amount of assets upon divorce (not to be confused with alimony payments, which generally can't be waived in a prenup).

Dubin says that prenuptial agreements can be set up so that a career woman or man who leaves a job to care for the children and family will nevertheless get a 50-50 split of assets in the event of divorce.

"That's a very loving, fair agreement," says Dubin. "We're seeing more and more of them."

The agreements also are commonly used by inheritors, even though inheritance is legally separate property, who want what's his and hers clearly spelled out and by long-lived widows and widowers who remarry, but prefer to keep most of their assets separate to pass on to their children.

Protecting a spouse from the other's debt can be a compelling reason for a prenuptial, even though a spouse has no legal obligation to pay the other's debt acquired prior to marriage. But if that debt begins to drag down the couple's finances, they could fall behind paying for a home or car, and that asset could be attached or their wages could be garnished.

"By the time it becomes a problem, it's too late to think about it," says Stoner. Even if they don't draw up a prenuptial agreement before the marriage, such a couple should at least disclose to each other what is owned and what is owed.

Dubin says she recently worked with a bride who had $90,000 in student loan debt for graduate school and $60,000 in credit card debt.

Another problem area is closely held businesses.

Stoner recently assisted one couple who had started a business together and then decided to get married. She referred them to a lawyer who helped create a business partnership agreement, separate from their marriage, and a buy-sell agreement that would provide insurance, or liquidity, in the event one of them died. "That gave them a big sense of clarity and a really good foundation for their marriage," she says.

Prenuptial agreements need not be carved in stone. They can be flexible, with spouses agreeing to own some assets separately and others jointly. Some contracts call for one partner to gradually buy half of the assets, and some call for a gradual phaseout of the agreement if the marriage endures.

"The biggest hurdle is for people to talk about it all," says Dubin. "Once they do, it's pretty easy to come up with ideas."

Here are some tips from the experts on how to pop the "P" word:

1. Start early, no later than three months before the wedding, advises Stoner. The closer to the wedding date an agreement is signed, the less likely it will hold up in court and the more likely you will create an unclear or unfair document.

2. Decide whether you need one. After you talk about what you want, you might find with research that the laws of your state are adequate to cover your situation.

3. Be direct, open and honest, advises Dubin. If there's a specific issue that troubles you, spell it out: My parents went through a horrendous divorce where money was a real problem; or I'm in a multigenerational business with my father and I don't want it messed up in a divorce; or I have a lot of credit card debt and I don't want it to become your problem.

4. Decide exactly what your agreement should say. Do some soul-searching, list-making and researching. Make a template together, rather than a one-sided agreement, advises Stoner.

5. Then each of you should present the template or draft to your own knowledgeable lawyer for review. Use lawyers who won't make the process adversarial. "This is a process," says Dubin.

6. Have the attorneys draft the final agreement. Signing it should be something you do without regret, says Stoner. Allow time for the lawyers' schedule, time for notarizing and even time for just the two of you to celebrate the hard work you've completed. Then file the agreement and enjoy your wedding day.

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