Could someone please tell me the purpose of prenuptial agreements? According to the statutes of my state (Colorado), each party to a marriage maintains possession of the assets he or she owned prior to the marriage if the marriage is terminated. I checked the law in California, the most liberal of states in such matters, and found the law to be the same. Only marital assets, i.e. those acquired by either party during the marriage, are to be divided upon divorce. As I understand it, a prenuptial agreement is employed when one party wants to protect the property he or she has from his or her spouse if a divorce should later occur. A recent example in the news is the prenuptial agreement between John Kerry and his zillionaire wife. Since the statutes of Colorado, California, and presumably all other states already protect premarital assets, what is the point of a prenup? The cynic in me says that it’s only to make greedy, filthy rich lawyers even filthier and richer. I ask because I recently entered into a union with a woman who has virtually no assets… well, financial ones anyway. I, on the other hand, have a tidy little nest egg resulting from many years of hard work. Having assumed that the law is on my side, I didn’t insist on a prenup. Should I be worried? Any thoughts would be greatly appreciated.
IANAL, but the prenup protects the wealthiest party. Suppose you are a gazillionaire and you are going to marry a woman that owns only the clothes she’s wearing.
If you get divorced without a prenup she will get half of your property. With a prenup, she will get nothing.
Leaving your ex-wife with nothing might sound cynical, but some people will marry someone rich with the intention of getting half their property after a divorce.
If you are a relative newlywed, who took vows to remain together until death, and you have no intention of sharing your “nest egg” with your new wife as you forge your life together, and are already contemplating how your “assets” might be in jeopardy, I’d say you have more to be worried about than what the purpose of a pre-nup is. But since this is not IMHO, I’ll refrain from further comment and just suggest that if you are really that concerned, contact an attorney in your state and have them draft a “post nuptial agreement,” which is exactly like a pre-nuptial agreement, only it’s drafted after you’ve gotten married.
Good luck.
You’re thinking about a pre-nup as it affects asset distribution in the event of divorce. A more important reason for a pre-nup is what happens in the event of death.
Most states have an “elective share” under which the surviving spouse is entitled to not less than one third or one half of the deceased spouse’s assets regardless of what is in the deceased spouse’s will. Where a marriage involves spouses with prior children, the spouses may wish to eliminate the elective share to ensure that an appropriate share of that spouse’s assets go to that spouse’s children. For instance, if two well off people with grown children marry, they might want each of their assets to be distributed to their respective children, and not their late-in-life spouse. Without a pre-nup (or post-nup) waiving the elective share, the longer surviving spouse might be able to get half of the earlier deceased spouse’s assets and distribute them to his or her children. Similarly, there are substantial estate planning considerations for people with large estates that may involve pre-nuptual waivers of inheritance rights.
In short, if you divorce, the courts will likely divide your assets by equitable distribution where, if the marriage is relatively short and was started with a significant asset imbalance, such an imbalance will likely remain. However if you die, your spouse will likely be entitled to at least one-third of your assets, and if you want to avoid this, your spouse must sign a pre- or post-nupual waiver.
A prenup can help avoid evidentiary problems in later years by listing the premarital assets and their values at the time of marriage.
A prenup can deal with alimony issues to a certain degree (YMMV).
I’d like to help, but as “a filthy, greedy lawyer”, it’d be against our code to give free legal advice.
IANAL, etc., just a regular person who’s been divorced. Not all states have the same rules re: what happens to your assets upon divorce. During your lifetime, you may move from one state to another. A common reason for a prenup (aside from the one-partner-has-more-money issue) is when there’s a second marriage with pre-existing children involved. Also, if you inherit money during the marriage, that’s going to be divided up. So if your parents have assets and his do not, your parent’s savings are partly going to go to your husband. If you have a good marriage, then it doesn’t matter in the least. But you never know. What if you prefer that your inheritance go to your children?
Marriage is an emotional thing, or a religious thing for some, but as far as the state is concerned it is a legal arrangement. So if you’re entering into a legal arrangement then it behooves you to find out what you’re committing to, legally and financially speaking.
p.s., there is good info, and book available, at the Nolo web site
http://www.nolo.com/lawcenter/index.cfm/catID/F896EE61-B80C-4FE1-B1687AC0F07903BA
Thanks for all the helpful information. Just two more comments to clarify statements made in response to my post. For Dog80, what you said was in direct conflict with the statutory law of both Colorado and California, as mentioned in my post. Only MARITAL PROPERTY is divided between the parties upon divorce, not PREMARITAL PROPERTY. A fifty-fifty division is only done in states with community property laws, such as California. In Colorado, the division is based on the concept of equitable distribution.
As for Random, I understand your position completely. Upon reading the Lawyers’ Code of Ethics, I was surprised to find that it contained only the following admonition: “MEMBERS OF THE BAR ARE PROHIBITED FROM ENGAGING IN ANY BEHAVIOR OR ACTIVITY THAT MIGHT IN ANY WAY BE CONSTRUED AS BEING ETHICAL.”
IANAL, but separate property can and does end up being deemed marital property under certain circumstances, such as when marital income is used to maintain the property, or in the case of bank accounts, when funds are co-mingled. Also, increases in value over the term of the marriage may be attributed to combined efforts of the marriage. Definitely, if you put your wife’s name on your nest-egg account, or, if you so much as transfer funds to your nest egg from a joint account or pay maintenance fees on the account from a joint account, that may be enough to make it marital property.
What a pre-nup does, in addition to other things mentioned in this thread, is acknowledge that, regardless of any other actions taken, the stated property is to be considered separate property and not subject to equitable distribution or community property laws should the marriage dissolve.
In the case of your nest-egg, you need to cap it off now and start a new one. At least that way, you have incontrovertible proof that the account accumulated the bulk of its wealth before your marriage and also prevents you from accidently comingling marital funds into it, and hopefully retain its separate property status (speak to a lawyer though). Start a new nest-egg account in full knowledge that no matter what precautions you might take, it will probably be deemed marital property when all is said and done.
I think what Random meant was that when you’re trying to get somebody to do you a favor, like having a lawyer explain the law to you in his free time, it’s generally not a good idea to insult them when you do it.
I know. I was just kidding. 
Like all lawyers, I’m sure Random has a tremendous sense of humor. It’s the only way they survive in such a miserable profession.
Ah, I can see where Random’s confusion arose, seeing as how usually when someone is kidding the thing they say kiddingly is to a degree humorous.
Otto, please allow me to apologize. I had momentarily forgotten that grasping the subtle nuances of sophisticated humor is too much to expect from those, such as yourself, of extremely limited intellectual prowess. Beevis and Butthead is more your speed. So how many times did you test until you finally passed the GED exam?
LEETO. You started out the thread on the wrong foot by insulting lawyers as a group. Don’t do that in GQ. Take it to The PIT.
And, continuing this thread by insulting other posters(yes, I know, some of whom insulted you) is NOT a good idea. NOT in GQ.
Closed.
samclem GQ moderator