Five Tips on Planning a Prenuptial Agreement Before You Say 'I Do'

I Do, But I Don't Do Your Debt: How to Plan a Prenup
I Do, But I Don't Do Your Debt: How to Plan a Prenup

"No prenup!" headlines gasped last year as Kelsey and Camille Grammer's divorce went public. The star of Frasier reportedly is paying $50 million -- serious money even by Hollywood standards -- in the divorce settlement with his wife of 13 years. Other celebrities take a more pragmatic attitude to love. Katie Holmes and Tom Cruise's 2006 marriage agreement included a contract paying Holmes $3 million for each year they're married, up to $33 million for 11 years of wedded bliss, in addition to a sizable house, reports said. After that, California law entitles her to half of Tom's money should the marriage end.

For the rest of us, prenuptial agreements are considerably less high stakes -- at least in strictly numerical terms. A few tens of thousands of dollars may mean more to the average couple than a million to Tom and Katie. And as unromantic as a prenup is, brides and grooms getting married this year -- no matter what their net worths -- should consider whether a premarital agreement is something they want, or need.

A quick financial inventory of you and your future spouse will reveal if you're candidates for one. Typically checklists focus on what you do have (property, inheritance, business, earning potential). Just as important is what you don't -- like positive net worth. If you don't own or owe much, and neither does your partner, then you probably don't need a premarital contract. But with the average age of first-time brides and grooms increasing in the United States -- 28 for men and 26 for women today -- couples are bringing more liabilities, including credit-card debt, student loans, and even mortgage debt into first marriages.

What Are You Really Bringing To The Altar?

States' laws vary on marriage property. In most cases, what you brought into the marriage -- such as title on a property or $10,000 in credit-card debt -- remains yours, for better and for worse. However, if you and your spouse combine credit-card accounts or add the new partner's name to a property title, the responsibility becomes shared.

Other issues are affected as soon as you say "I do," and the impact of monthly payments on a household budget or a couple's ability to qualify for a home loan can cause financial tension. As couples combine their finances, make shared payments, or jointly fund big expenditures like home improvements, the lines between liability and ownership blur.

A prenuptial agreement can troubleshoot some of these issues in advance. Even as the stigma of prenups lingers, they are becoming more common, says Evan Sussman, a family-law attorney who represents clients in Beverly Hills, Calif. In second marriages, they are more routine -- around 20% of couples get them -- but for first-time weddings, that number is still very low: 3% in 2010, up from 1% 2002, according to a survey reported in USA Today.

Don't Shy Away From Talking About Money

Financial advisers and family-law attorneys both agree that emotional issues are the biggest hurdle to broaching the topic of a prenup -- and questions regarding money and marriage in general. Finances and feelings are like peanut butter and jelly: They seem to always to be stuck together. The dreaded phrase "I want to get a prenup" can push buttons of fear, anger and denial.

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"That is the point couples get into therapy," says Susan Pease Gadoua, a licensed therapist based in San Rafael, Calif., who specializes in divorce. "The man or woman had a realization and it has made them question if they are with the right person." Last fall, The New York Timesprofiled a couple who ended their engagement after the fiancé learned his wife-to-be owed $170,000 in student loans.

Candace Bahr, a certified estate adviser based in San Diego, Calif., says talking about money is part of the commitment of getting married.

"Let's say you are saver, and you marry someone who is a lot of fun, but you have no idea where the money is coming from. You may be taking on their debt over time, and that can create a rift," Bahr says. "As uncomfortable it is, talk to each other about what each of you has."

Bahr is concerned that too many women turn a blind eye to finances when their emotions are heightened. "I am still shocked that many women think that someone is going to come and rescue them," she says. "A Prince Charming can fall off his horse. Even though you are in love, you need stand on two feet."

Five Tips for Planning a Prenup

1. Do it long before the wedding
. Family-law attorney Sussman advises getting the agreement as early as six months to a year before a wedding date to ensure that both parties have had time to review it. Last-minute contracts are harder to enforce.

2. Step out of your emotions. The emotional roller coaster of falling in love and wedding planning can distort reality. Getting objective feedback can help separate what is real and what imagined. "My husband likes to joke that we lose 100 IQ points when we are falling in love," says therapist Gadoua. "It's called emotional flooding and we can learn to manage those emotions."

3. Use your taxes as an excuse to talk about money.
"Right now we are in tax season, so it's a great time to look at finances," says Bahr. "Look at each other's returns as a way into the conversation. It can feel threatening, but it is important to have the uncomfortable conversation now, rather than later in a time of crisis."

4. Make your agreement reasonable and enforceable.
If you are preparing a prenuptial contract, establish your goals and don't include fault clauses (like "If you cheat on me, you owe me $1 million"), advises Sussman. The goal is to have a contract that is enforceable and provide each spouse with a sense of exactly what they are getting if the marriage ends.

5. Research your state's law regarding marriage and property.
Marriage property laws are different from state to state. You can find more information about lawyers specializing in prenuptial agreements at the American Academy of Matrimonial Lawyers.