Pre Nup Considerations for Anyone Getting Married

‘To Pre Nup or Not to Pre Nup?’: Considerations for Anyone Getting Married

 

There recently has been lots of trending news around 90s and early 2000s superstar, Britney Spears. The internet started the #FREEBRITNEY movement, which was aimed as removing her father, Jamie Spears, as her 13-year conservator. Britney went through a public mental break in the early 2000s and needed an intervention. Her father stepped in and filed to be her conservator and the court granted him the role. The conservatorship made sense at that time. Britney is a brand and needed help while she recovered.

Fast forward through many years of isolation from the public, interviews, other family, friends, regular life, autonomy, forced medication, etc., suddenly people on the internet were noticing cryptic things in Britney’s post on social media. The ground swell of likes and shares got the #FREEBRITNEY allegations traction. The hashtag was trending, and documentaries were being made.  Then there were court hearings to review the status quo with media and fans supporting outside. This media/social media ground swell outside and online has an effect these days.  Britney has wanted her Dad removed for a long time. She has alleged that her Dad has abused his power and treated her like a prisoner. This internet started campaign was the catalyst to get Britney new legal counsel this summer who petitioned for removal of Jamie as conservator. Britney’s allegations about very controlling and harsh treatment by her father over these 13 years are egregious. With the pressure on, the end of the conservatorship was being telegraphed as Jamie recently filed documents to voluntarily step down. Britney’s new counsel is no joke and move expeditiously. By the time of this posting, her dad is out as conservator. Congrats Brit!  Britney burst into tears and is elated to be out of her conservator prison with her dad. She may still have a conservator, or more likely co-conservators, to help her navigate her millions and still live her life as an adult with agency over her body and business.

With the end of the Jamie Spears reign as conservator, Britney’s boyfriend of 5 years, Sam Asghari, was able to finally propose marriage to Britney. Before Jamie’s removal Britney could only contract to a legally binding marriage with Jamie Spear’s consent. He was NEVER going to let any other man that close to his daughter (cash machine), not in any official way. Britney was simply ecstatic to “finally” be wearing that man’s ring and posted about it excitedly on social media.

Of course, people have lots to say when a wealthy celebrity engages with a person in a lower tax bracket. The chants of “PRENUP” started immediately. Even fellow celebrity, Octavia Spencer, chimed in with an off-the-cuff comment, “Make him sign a prenup.” That lil comment went viral and kind of embarrassed the couple a bit. They took the unintentional viral shaming in stride and jetted off to paradise to celebrate their news. (Lucky them).

In the case of Britney Spears, who has varied financial interest in a catalog of music, publishing rights, merchandising, and of course, future performance, prenuptial agreement is an absolute must. She is now and will likely always be a very high-income earner with the celebrity to leverage into billions. She is a brand. No matter how much love there is in the world, she MUST protect her brand with an iron clad prenuptial agreement. And from the looks of it, her guy has no issue signing one. Mazel Tov, y’all!

The reality is that most people who are entertaining the idea of getting married are not earning millions of dollars per year currently. However, who is to say that people who don’t earn or own much today won’t be earning or owning $,$$$,$$$ at some point in the future? Also, even if you don’t have millions in income or assets, what if you just want to keep the home you purchased before you got married? Or want to be insulated from your partners debts?

When you get married, certain rights and obligations spring between the parties as it relates to each other’s interests in the others property and acquisitions.

 

What rights spring when you get married without a prenup?

  • Income earned while married is marital property is generally deemed marital
  • Appreciation of an asset during the course of the marriage can become subject to equitable division
  • Separate property that is comingled in the marriage can become marital subject to equitable division
  • Inherited property or funds that are comingled can become marital property subject to equitable division
  • Debts acquired by one party can be deemed debts of both parties
  • The standing to file a wrongful death claim (or other spouse only rights) if your spouse is killed and some is liable

 

What is a Pre/Post Nuptial Agreement?

A legally binding contract, designed by the parties, controlling and planning your landing IF your marriage ends in divorce. Nuptial mean “relating to marriage or weddings.”

A ‘PRE’ nuptial is an agreement entered into BEFORE THE WEDDING by two engaged people contemplating marriage to pre-determine property division and other terms in the event of a divorce. With a prenup, there is no need for consideration, or something to exchange for the agreement, the wedding itself IS the consideration.

A ‘POST’ nuptial is an agreement entered into INSIDE OF THE MARRIAGE by two married people. When drafting a postnup, the proponent of the agreement must give the other party some valuable consideration in exchange for signing away rights to anything in the postnup. Because remember, you already have certain rights to your spouse’s earnings and/or property by virtue of being married. BUT, sometimes to stay married (maybe after an affair) some people stay under certain newly negotiated conditions that will govern their ‘new’ marriage 2.0, under new contract. An example to a post nuptial provision that I’ve drafted is that they set up a pooled account for certain funds while maintaining their own income in separate accounts they agreed to keep separate. In the event of a divorce, only pooled funds would be divided.

The terms of your pre or postnup are very customizable depending on your unique circumstance and considerations.

 

What types of things are being negotiated?

  • Divide assets
  • Property Rights
  • Defining joint property vs. separate property
  • Debt allocation
  • Alimony
  • Health insurance
  • Who pays Attorney fees
  • NO agreements related to child custody or support. The courts feel that these issues need to be evaluated ‘at the time’ of split based on the children’s best interests, not their parents’ agreements from years ago. The court will not enforce such provisions.

 

Who needs one?

More people than you think. No one puts on a seat belt expecting to crash. It is usually topic with some emotions attached to it. People often find money talks to be uncomfortable, but they are extremely necessary for a solid, fully informed foundation. If you are upwardly mobile and your partner is very ok with comfortable mid-level position, will that income divide become a problem over time? Do you both have similar spending habits? Do guys have similar ideas around accumulation of debts? If any of these topics gives an engaged person an uneasy feeling, it’s time to get a consultation with experienced counsel to understand drafting options.

Don’t wait. Timing of presentation of the prenuptial agreement to your bride/groom is key. NO shocks. NO pressure. NO coercion. NO threats.

“A prenuptial agreement may be voided:

(1)  when obtained through fraud, duress, mistake, or misrepresentation or nondisclosure of material fact,

(2) if it was unconscionable when executed, or

(3) when the facts and circumstances are so changed since the agreement was executed that its enforcement would be unfair and unreasonable.”

Reed v Reed, 265 Mich App 131, 142-143; 693 NW2d 825 (2005)

So, be honest. Start the conversations, with your person and with counsel, early. Allow time for review, edits, negotiation of fair deal both people can smile about and then get hitched.

 

How much does it cost to draft and/or negotiate the terms of Pre or Post Nuptial Agreement?-

Price vary based on the size of the marital estate and if the amount of negotiation is necessary. The range of attorney fees is anywhere from $1,500 – $50,000. It’s important to understand that the attorney will consult with you, advise you and draft a document that is in your best interest. The other side may or may not ultimately like the terms and can refuse to sign the document, however your counsel will still charge for the work to create it.

Let us help you figure out the logistics, while you re-arrange your life and find peace.

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