The Definitive Guide as to Why You Should Get a Prenup

Comment Here / Leave a Comment or Question
Topic: Family Law

At weddings, I’m probably the least romantic person around. While others want to give gifts of silverware and china and offer trite, folksy wisdom like “Never go to bed angry”, I’m the guy offering up good, solid advice like “Always have a safe word!” and, on the subject of this post, “You really should get a marriage contract in place!”. I once wanted to give a gift certificate for a prenup as an engagement party gift, but dear wife convinced me that it was “tacky”. Whatever.

I’ll be the first to admit that discussing a marriage contract (popularly known as a prenuptial agreement, antenuptial agreement, or premarital agreement and commonly abbreviated to prenup or prenupt) is about as fun as dental surgery. For many people, talking about a prenup feels a little too much like making funeral arrangements at a baby shower, but having that awkward conversation in the beginning can save a huge amount of frustration, anger and money down the road.

First, let’s get the “it’s not romantic” garbage out of the way- unless you’re having some new age, hippy dippy, granola, tree planting wedding under a canopy of lavender and choose not to register it with the state, marriage is a legal and civil arrangement. Yes, it’s about love and all that jazz, but it’s also a union that is governed by the laws of Caesar and whether you like it or not, there are rules and regulations that come along with it. It is a contract. And the law is quite clear – you can set your own terms, or the government can set them for you. It’s your choice, but you’ve got to choose one.

So what are the default rules? It varies from province to province and state to state, but the fundamentals tend to be similar. This is how the biggest categories of assets are dealt with in my jurisdiction:

Marital property – by default, any property acquired during the marriage gets divided evenly. It doesn’t matter who paid for it or whose name it’s in, or if she’s a nag or he banged his secretary, everything gets divided equally. This can include investments, pension contributions, retirement savings, the car, the boat, the plasma TV, the cat and the dog. There have been a number of cases that have even recognized a degree or future earning capacity acquired during a marriage (such a medical degree or dental license) as an asset, entitling the other spouse to a significant future stream of income from that asset. It doesn’t just apply to assets either, as debts get divided the exact same way.
Family home – The family residence (or the “matrimonial home”, as we law folks like to call it) is usually a little bit different, as it doesn’t have to be acquired during the marriage to be divided- regardless of whether one person brought it into the marriage, it gets split 50-50. Recreational properties, such as a cottage or vacation home, can also fall within this category in some cases. Again, it doesn’t matter whose name is on the deed, or who paid for it.
Assets brought in by either spouse – the items brought into the marriage by either person are generally excluded from division, as long as they have been kept separate. The big exception is the family home, as mentioned above. However, any savings or assets that are intermingled after marriage will be treated as marital property, and any increases on things like investments count as products of the marriage.
Business assets – business assets owned by just one spouse are usually excluded from the normal matrimonial assets, meaning that they will not necessarily be divided equally. However, where the other spouse has made a contribution to the business- and this can be in the form of money, labour, even family support and child care- he or she may be entitled to a share of the business.
Inheritances and settlements – generally, money inherited or obtained in a legal settlement by one spouse during the marriage remains the property of that spouse, BUT ONLY if it is kept separate. This means in a separate bank account without the other spouse’s name on it- once it intermingles with the other assets of the marriage, it’s marital property. Similarly, if that money is used to buy a flashy new car or granite countertops for the kitchen, it has been mingled and will be divided equally.

In addition to the division of assets, on divorce the law provides for the possibility of spousal support payments (also called alimony) being ordered. If you don’t like paying for hubby’s expensive habits now, I can guarantee you that you won’t like it when he is shacking up with some hoochie across town.

For some people, this arrangement works just fine. Traditionally, when people often married younger with no real assets and partners played more traditional roles, this would have been a fair way to deal with things. Today’s reality is that many people are bringing substantial assets ands debts into a relationship, and these quickly intermingle to become joint products of the marriage. There are also often different expectations about what roles will be played in the marriage, and varying views on how joint assets should be split up. As a result, for many people it makes a lot of sense to set their own terms for the marriage, terms that make more sense for their individual circumstances. You can change just about any of the default rules, with one big exception- any provisions regarding custody of children or payment of child support will not be enforceable.

With this in mind, you should seriously consider a marriage contract if you fit into any of these categories:

You’re bringing a house or other real estate into the marriage;
You have children from a previous relationship;
You have significant assets, savings, investments, or debts;
You own a business;
You stand to inherit a substantial amount of money;
You plan to give up a career to raise children; or
You will be supporting your spouse through advanced studies

If you think a prenup might be a good idea for you, start by talking to your partner. Admittedly, this is not a pleasant topic to discuss, but it’s not going to get any more pleasant if the marriage fails. Quite frankly, if you can’t have a reasonable and mature discussion about this topic, you probably shouldn’t be getting married in the first place. I know, I know- you really love each other and that will never happen to you. That’s what absolutely everybody says, and at least a third of them are wrong.

Once you have discussed the issue and have an idea of what you both want, you will each need an independent lawyer to help you draft and finalize the agreement. The cost can range from $300-$500 for a ridiculously simple agreement to several thousand for something fairly complex. Don’t wait until a day before the wedding, either- pressure like that could very well invalidate the agreement, and you’ve got more pressing things to worry about at that point anyway.

Finally, just because you’re already married doesn’t mean you have to miss out on the fun of telling your love that there’s no way in hell she’s ever walking away with your comic book collection- if you’re not married but are living with someone, you can get a cohabitation agreement in place to prevent any nasty arguing over who owns what. While the laws for common law partners are a little different than those for married couples, there is still potential for claims against the assets of the other than can be avoided with a good contract. You can also sign a marital contract at any time after you get married, and it can be changed as your situation changes. Nothing says “Happy 50th Anniversary” like a trip to the lawyer!

[thanks to mrmonochrome and money grubbing lawyer via cc]