Poll: Prenup?

ladybirda

Are you getting one? If so, do you have anything unusual on it? (For example, I've heard of couples predetermining who gets custody of their pets.

Jamilynn627

I don't have anything against prenups, but we had no real assets so we saw no need. I'm not sure that we would have gotten one if we did, but it wasn't even a consideraiton for us.

tuffybear

Hi there

We are planning on getting one.We each have our own lawyers working out the details. We have also worked out who gets the dogs, the children, and who will pay support for both and how that will work out should the marriage end. We currently have one daughter and two dogs.  I think its important to have these issues worked out before the marriage begins so down the road if anything should happen there are no disputes its clear cut. Divorces involving children and more importantly child support can be so messy and sad.  I think if your not planning to have any children you may not need a pre-nup. 

tuffybear

the last thing I want to say about it is that I believe that doing this now will actually save you in lawyer fee's later, should the marriage fail. Not that it would, but I am of the firm belief that you never know what is going to happen down the road. Hopefully it wont and you will never need to use it, but its just a good measure of protection. 

ladybirda

Can you really work out who gets the children in a prenup? Our lawyers said that Family Court in NYC can just overrule anything you put in a prenup when it comes down to determining custody/child support.  Which is annoying, because having grown up seeing my mom struggle to try to get child support from my dad, it's the one thing that mattered most to me in our prenup.  

MrsKocal

In Response to <a href="http://forums.theknot.com/Sites/theknot/Pages/Main.aspx/local-wedding-boards_new-york-new-york-city_poll-prenup?plckFindPostKey=Cat:Local%20Wedding%20BoardsForum:114Discussion:ee74b822-5123-4529-b462-68c1c8fe520aPost:4d6d1212-c274-4a76-bdad-9189a84589f9">Re: Poll: Prenup?</a>:
[QUOTE]Can you really work out who gets the children in a prenup? <strong>Our lawyers said that Family Court in NYC can just overrule anything you put in a prenup when it comes down to determining custody/child support</strong>.  Which is annoying, because having grown up seeing my mom struggle to try to get child support from my dad, it's the one thing that mattered most to me in our prenup.  
Posted by ladybirda[/QUOTE]

I don't practice matrimonial law but I believe your lawyers are correct - family court judges use the "best interests of the child" standard when determining who gets custody of children, so you can put whatever you want in a prenup, but if the other party contests it, the judge will evaluate what is in the best interests of the child and it may not end up being the same thing that you decided on when you signed the prenup.  And think about it - you may be fine now agreeing to a custody situation when there are no real kids that you are talking about, and everyone is getting along and in love, but will you still think what you agreed to is hunky-dory when you are in the midst of a divorce and there are actual kids you are fighting over? The likelihood that one party will contest the agreement is high.

We did not do a prenup - neither one of us have any assets to speak of, and we plan to be in this relationship for life so we thought it wouldn't make sense.

Jane_Birkin

i have been thinking about it but haven't researched them at all. i own the apartment where we live and the mortgage is in my name, i have other assets (though not huge). in the back of my head i know it would be a good idea to protect the substantial investment i made in our home, but i don't really want to bring it up with FH. we aren't going to have kids so we wouldn't need to prepare for that situation, at least. also we've been together for 12 years and living together for 7 so i hope we won't be getting divorced!

sjnsjnsjn

Jane_Birkin - I'm with you.  I own property & other assets and have been considering it as well.  I've been with my guy for more than 5 years, but like all of you guys, I live in the real worth with the real divorce rate.  I think a prenup is usually a good idea.  But I have to work up the courage to raise it with my FH.  I don't think he'll disagree remotely - just awkward to discuss the possibility that things don't work out, when you're in the dreamy place...

alisonz

I have owned the home we live in for 10 years (we have been together for 7.) I also have personal savings.

We have not talked at all about a pre-nup. Is it foolish of me not to have one?

Jane_Birkin

Alison--  it would probably be a good idea for you to talk to a lawyer who knows a lot more about how family law treats gay and lesbian couples than most of us will. what i have heard anecdotally is that while there is a huge body of law around divorce and child custody, there is so much less law on the dissolution of same-sex relationships, especially if you make kids a part of your family, and that lack of existing law makes things that much more messy. i'm sure there are plenty of lawyers out there for you to choose from, but I hear good things about Yetta Kurland and her office.

SJN et al-- it is just such a weird conversation to have. i feel like i would be being selfish--what's mine is mine. i make about a third more than FH does and, due to grad school and the general difficulty with finding a job, it's only been within the last 3 years that he was working full time. so during the first 5 years we were living together i definitely paid more than my "share" of household expenses, and i'm sure i still do. but he buys all the groceries, does all the cooking, and pays for all our entertainment, which if we go out is $100 for dinner, etc. 

I guess I should look into this more because I don't know how these different expenses would "count' if we got divorced. I wouldn't want him to get ripped off in the deal for paying for non-tangible things...which is the way women have gotten taken advantage of in divorce settlements for decades. But at the same time, I am the one who has been super-financially responsible for all these years and there's no way we would have this apartment if it wasn't for that (and my parents' help with the down payment).

Tuffybear--can you tell us more about what it has been like to get the pre-nup? how were your conversations with FH? was it awkward and weird, or did it make you hash out issues in a good way?

ladybirda

I think tuffybear is right about saving lawyers' fees in the case of a divorce (although we'll be paying quite a lot in fees to get the prenup, as we each have to get our own lawyer).   I saw what my mom went through with her divorce and in a case where you don't have a ton of assets, the lawyer fees can eat up more than half of whatever your settlement is. (In her case, they just had the house and modest retirement funds, but the fees were pushing $20K. I know. Crazy.) 

It's definitely a weird conversation to have, especially since we're just a few months away.  I would definitely recommend anyone who is considering it talk about it sooner rather than later, so it doesn't get wrapped up in last minute wedding planning stress. 

metalkp

I'm not getting one just because neither of us really have enough to justify the cost. I have a fair amount of savings, but so does he. Plus we've been together most of the years we've been building that savings, and our living together has made much of it possible, so I'm comfortable with calling it even in the event of divorce. We don't own any property. If I did feel we needed it, I would have no problem bringing it up. We're both pretty responsible with money and on the same page when it comes to financial matters (I taught him everything he knows!).

Having said all that, I'm 100% in favor of prenups and think for anyone who has significant assets, it's an absolute must. If you decide not to do it simply based on the "awkwardness" of talking about it, or because you're convinced you'll be together forever, I think you're making a huge mistake and there is about a 50% chance you will live to regret it. Sorry if that offends all the romantics on the board, but that's life!

slbriz34

You CANNOT use a prenup for custody matters - that'll be thrown out as soon as the couples enter a courtroom.  Same holds true for issues related to how the child will be raised (ie religion) and other similar matter.  Any attorney that says otherwise doesn't know what he/she is doing.  You could use an agreement for other matters, perhaps such as paying for certain expenses, etc. 

As for separate property - property that you bring into the marriage will always remain yours, that's why it's called separate property.  Now interest or other income you generate during the marriage is another story, but a lot of these things can be worked out and done without the need for an attorney, but it's good to have one just to make sure you do things well.

alisonz

just wanted to say thanks to you ladies. This post actually motivated me to get off my ass and begin dealing with this.

I called a lawyer, the wheels are in motion. next step... talking to FI. wish me luck!

ladybirda

Good luck Allison!  I'm not looking forward to my meeting with the lawyer but I know i have to suck it up and go...

xtine_xtine

Hi Ladies!

Thanks for posting all this great info. I have a question for you. My fiance has a lot of financial assets and is planning to put together a prenup. I, on the other hand, have a little savings but nothing near in comparison. Should i also get a lawyer and have a prenup written? At the moment the prenup would protect his assets. Do I also protect mine although very small? I don't own any property. I just have some savings accounts, IRA,  401k etc. Nothing that substantial. Not sure what to do here... 

Let me know what you think.

alisonz

xtine- I believe you will need your own lawyer no matter what.

I am in the same position, where I have assets and my fiance has none. However I was told that she needs her own representation anyway.

xtine_xtine

alisonz,

ok, thank you. that makes sense. i appreciate the advice! 

best,

xtine

alisonz

xtine- I just noticed we have the same date! where is your wedding?