how do prenups and postnups work

RADIO: The Awkward Conversation of Prenups and Postnups

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Creating a prenuptial agreement is often a useful, prudent move before marriage. But there’s a stigma attached to these documents. Many people view them as a sign that spouses don’t trust each other or they think a union is doomed to fail. Even though this isn’t necessarily the case, bringing up the subject often becomes awkward.

So, the question is, how do you ask for a prenuptial agreement? One of our founding partners, Rick Jones, makes regular appearances on the Danny Bonaduce and Sarah Morning Show, where he answers questions from listeners. On a recent show, this very topic came up.

Prenups & Postnups Part 1:

EMAIL: “I’m engaged to be married next spring. My fiance is the love of my life but she is in a much lower tax bracket than myself. I have a considerable income. I own businesses, I own property. Because of this, friends and family persistently urged me to get a prenuptial agreement. I understand the instinct to protect assets, but on an emotional level, I struggle with it. 

“How can I tell the person I want to spend the rest of my life with that I don’t trust she wants to do the same?”

Rick: “There’s a presumption that he’s making that it’s somehow about trust…”

Danny: “Hey wait, now I’d have made that. I’d have thought it’s all about trust, it’s not?”

Rick:Basically what you want to do, and the purpose of a prenuptial agreement is, is to acknowledge exactly where things stand right now. When you get married, you go into business together. [The state] treats it as a business when it dissolves.

So the reality is you’re basically saying, ‘Here’s where we stand, here’s what I bring into the marriage, here’s what you bring into the marriage, here’s the conditions we’re going to use,’ if, in fact, this doesn’t work out.”

Sarah: “Have you had…obviously you’ve drawn up a lot of prenups, do you have recommendations on verbiage to say to somebody?”

Rick: “Contract language or just counseling?”

Sarah: “Counseling. Do you say, ‘Hey, this is a business, honey’?”

Scott: “Because it isn’t the most romantic thing in the world to say, ‘I want you to sign this prenuptial agreement’.”

Rick: “No it certainly isn’t. By the time we see somebody, they’ve come to us, we’re not soliciting the creation of a prenup. They’ve come to us, so there’s already the concern. Again, I guess I am going to step away from the word ‘concern.’  There’s already a ‘responsibility’ they’re bringing to this, so it’s fairly rare that that prenup then gets ripped up.

“I mean ultimately, if somebody is uncomfortable with you recognizing that you’re bringing something into the marriage, and they’re going to turn that around and make it about emotion, perhaps that’s a warning sign.

Danny: “Wow. That was awesome. I didn’t see it coming in that direction at all. You know, I, have never had [a prenuptial agreement]. And I’d be a lot happier with my last divorce had I had one.  Although it’s hard to get a girl to sign a prenup when you have nothing and might be going to jail. But still, she did fine.

“So then I wanted one with Amy because I thought it’s the prudent thing to do. It’s the smart thing to do. And as a matter of fact, Mr. Jones helped me work out a little document that she was good with. She encouraged it because I was acting oddly, thank you very much for your hard work by the way.

“And then we went with the, ‘You know what, don’t sign it.’ And the good news is I’m old and going to die relatively soon, so I think she’ll just put up with whatever I got going on until she’s what, 40, 45, and I croak and she spends all the dough? That’s the way I see it.” [Background Laughter]

Prenups & Postnups Part 2

But that wasn’t the end of the prenup talk. After Rick addressed the caller’s concerns, Sarah turned the conversation to Justin Bieber and his situation.

Case in point: Justin Bieber recently married Hailey Baldwin. If that last name sounds familiar, it’s because she’s Alec Baldwin’s niece. The pop star has a worth of around $225 million. On the other hand, the member of the Baldwin clan can rest her head on a $3 million net worth. That’s nothing to sneeze at, but it’s not quite $225 million.

He didn’t actually sign a prenuptial agreement, but so what about the possibility of a postnup?

Sarah: “Let me ask one more question about that prenup. Justin Bieber, he’s worth a lot more [than his new wife], can he come to you and get a postnup? Is it easy to file?”

Rick: “Sure, you don’t actually file a prenup or a postnup in this particular case. It’s a contract the two of you create, so the only time it sees the light of day in the courtroom is if there’s a dispute later, where somebody says, ‘I don’t want to be bound by that contract.’ And then it’s introduced as evidence of a formal agreement.

“Now, postnups and prenups can be attacked on principle. They can’t be considered ‘patently unfair,’ there needs to be the ability for both sides to have had meaningful access to counsel and all sorts of requirements that have come up over time in enforcing these postnups.

“Another thing I think is important to mention, a lot of people presume that a prenup or a postnup is directly advantageous to the higher income earning person, or the wealthier person, and that’s not necessarily the case.

“A lot of the prenups and postnups that we do are basically two people saying, ‘here listen, we recognize that if this doesn’t work out, we’d rather not have the court tell us how it’s going to be and pay the cost associated, attorneys, court time, etc.

“So we want to agree on our own to how this is going to work out.’ It often includes periods of time for spousal maintenance. ‘If this doesn’t work out, I’m going to support you for the next 5 years.'”

Prenups & Postnups Part 3

Caller:“My wife and I recently got married. We set up a prenup but now she doesn’t want to recognize it. She’s actually had her attorney draft up a ‘post prenup‘ [called a ‘post-nuptial agreement’] which doesn’t agree with the prenup. I don’t know if I should sign it or just get an annulment. It’s been less than 90 days.”

Danny: “So there is a prenup? That she signed?”


Danny: “Alright. Where’s he go?”

Rick: “Well the question is really, ‘What is she going to do if you say no?’ So, your position could be, ‘No, we have a deal, and a deal is a deal.’ Obviously, she’s either going to say, ‘Okay I tried,’ or she’s going to say, ‘Well then I want out.’

“So ultimately, this is the chess game, and she’s moved the pawn, so to speak.

Danny: “Now here’s where Ifind out one of the many many reasons Rick Jones is smarter than I, because I think, any girl or guy, whatever, who says, ‘I’m going to leave over a prenup you signed three months ago,’ you might be all right without that human being.” [Background laughter.]

Sarah: “It does seem a little bit strange.”

Danny: “If she, if they both went to lawyers, and it worked out just the way you said it would, that’s binding, right, she can’t just change her mind?”

Rick: “Well it exists right now, it ultimately is going to be binding yeah.”

Danny: “Play tough Ron!”

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