Published: Sunday, Feb. 13, 2011
Source: Sacbee.com
Valentine's Day: That heartfelt time of rings, romancing and oh-so-many wedding proposals. And a day when three little words just might be whispered in your ear.
No, not those three little words. The I-love-yous aside, we're talking these: a prenuptial agreement.
As the busy summer wedding season approaches, it's a good time to consider a document with a decidedly ominous reputation.
"It sounds so unromantic," said Beth Appelsmith, a Sacramento family law attorney, who's done dozens of premarital agreements. "But the negative connotations come from celebrity cases, the ones that go bad," she noted, like that of San Francisco Giants baseball player Barry Bonds, whose last-minute premarital document was contested all the way to the California Supreme Court.
Or the current, contentious case of Los Angeles Dodgers owners Frank and Jamie McCourt, whose prenuptial agreement has been at the heart of the couple's multimillion-dollar divorce.
In fact, the term has become so synonymous with loveless legalese that veteran family law attorneys like Hal Bartholomew in Sacramento prefer to call them "marital agreements" – "because it's a more positive word."
Nationally, the number of couples signing prenuptial agreements appears to be growing and the economy could be a factor.
In a survey of American Academy of Matrimonial Lawyers (AAML) members released last September, 73 percent said they've seen an increase in so-called "pre-nups" during the past five years. Also, 52 percent reported more women requesting prenups and 36 percent said pensions and retirement benefits are more commonly cited.
Stephanie Barber, a claims analyst with the State Compensation Insurance Fund in Sacramento, said she and her fiancé drew up a prenuptial agreement prior to their marriage four years ago "because I had a vested retirement and savings and he had a home with a lot of equity. It was so simple and it separated the financial from the emotional."
Unfortunately, the marriage didn't last, but the couple's prenup, Barber says, made the divorce amicable enough that "we're still friends."
Who needs one?
"If all you have is an apartment and a paycheck, then you don't need a prenup," said attorney Appelsmith. "But if you have real estate, a business, children from previous relationships, then you do need one."
Appelsmith, who's seen a slight increase in prenup requests the past few years, said it might be worthwhile for a couple to have a one-hour consultation with an attorney before deciding whether a prenup is needed.
Berkeley-based Nolo Press, which published a how-to book on prenups (see box), recommends that couples do some homework together, writing a draft of their financial preferences before heading to a lawyer's office.
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It's all about how you approach it, says longtime lawyer Bartholomew, who's done 50 or 60 prenuptial agreements over the years. "Too often I've seen agreements where one side has a buddy who's a lawyer. The agreement is very sterile or approached like it's a business arrangement."
But prenups are not an emotionless contract. "This is different: This is a couple in love with each other. … I like the empowerment of couples making these (financial) decisions together," said Bartholomew, past president of the AAML's Northern California chapter.
He and Appelsmith are advocates of so-called "collaborative" agreements, where a couple sit down, each with an attorney, to amicably devise a financial agreement that works for both sides. The emphasis is teamwork, not adversarial.
Appelsmith said it can also be helpful to have a neutral financial planner or adviser on hand to discuss the tax implications and financial strategies that might be involved.
And while it's commonly assumed that prenups are only for the wealthy – who want to shield expensive homes, cars and bank accounts in case of divorce – that's not necessarily so, say family law attorneys.
Sacramento attorney Dena Bez, who executed five or six prenups last year, said many of her clients are blue-collar couples with modest incomes.
The recession, she says, has driven more couples to seek out premarital agreements as protection from financial harm.
"Because of the economic climate, they're hesitant to get into a relationship that could affect their credit scores or expose them to debt collection," said Bez. "They want to insulate themselves from a partner's debts."
In one case, a middle-aged couple wanted a prenup because one had a clean credit history but the other had large amounts of credit card debt. Their prenup stipulated that each person's income and debts remain separate.
Another, a 20-something bride-to-be, sought a prenup to make it "abundantly clear" that her expected inheritance would remain her separate property. Even though inheritances and gifts are not considered shared assets in a marriage, she and her parents didn't want any uncertainty in case the young marriage didn't last.
What's required in a prenup? It must be in writing. Both sides must wait seven days before signing. Each person must fully disclose all their assets and their debts.
In addition, if alimony or spousal support is involved, both sides should have an attorney's advice. And if one party's primary language isn't English, the prenup should be translated so there's no misunderstanding of what's in the document.
It's also recommended that couples review their prenuptial agreement periodically, especially after 10 years or so, to be sure the terms still suit their circumstances.
Perhaps the best outcome of a prenup is that it gets couples talking about their finances before saying "I do."
"If a couple has a chance to talk about their expectations around money, they should be able to minimize conflict and surprises during their marriage," said Appelsmith, who's seen how financial differences can lead to divorce.
"Some people think it's kind of crass to talk about money," she noted. But if two people have completely different ideas about how to handle their finances, the process of setting up a prenuptial agreement "can actually generate harmony."
Ultimately, a prenup is insurance in case happily-ever-after doesn't happen.
"I've seen so many people go through horrific situations in a divorce because they didn't have a prenup. It gets ugly and emotional," said Barber, 39. By contrast, she says her split was clean, simple and friendly, thanks to the prenup: She kept her CalPERS pension; he kept his house.
"It was a no-brainer for us. I would definitely do another prenup, if I were to consider remarrying. Absolutely."
