Planning for Divorce: Pre-Nuptial and Post-Nuptial Agreements

Advising a client to enter into a pre-nuptial or post-nuptial agreement is uncomfortable, particularly when the happy couple is telling me about their wedding plans.  Basically, I am asking them to plan for divorce. But the divorce statistics are compelling. More than two million people divorce every year in the United States, with a 52% divorce rate for first marriages and a 60% divorce rate for second marriages.  A new demographic are couples divorcing in their sixties.  With much longer life expectancies, baby boomers are looking at twenty-five or thirty years of marriage after retirement.  Many are now opting for divorce, with the hope of finding someone new to share their retirement years. Ignoring these statistics is unrealistic.

 

I have found a good way to start this discussion by referring my clients to the "Commitment Conversation", at www.equalityinmarriage.org/cc.pdf.    It is worthwhile for any couple, whatever their marital status and stage in life, to go through this exercise.   Each member should fill out the detailed questionnaire separately and compare their answers.   They most likely will be surprised by each other's answers.   Doing this before marriage is ideal, but it's a good idea to do this exercise every few years after the wedding.  People change, particularly as they grow older.  When the children are grown and have families of their own, a couple's goals will necessarily change.    If the couple is approaching retirement, a discussion about goals and expectations is critical.     I have seen marriages fall apart when spouses who have worked fulltime are suddenly spending all of their time together.    Each spouse may have very different expectations about what will happen during retirement and what their relationship will be. 

That said, the divorce rate is still high.   With a pre-nuptial or post-nuptial agreement in place, there will be certainty when it is time to agree on property division.  This is particularly important when both spouses come into the marriage with their own assets.  In Massachusetts, the general rule is that all property acquired during the marriage is split equally between the spouses if there is no pre-nuptial or post-nuptial agreement.  With a properly drafted agreement, the terms of the agreement will control the division of assets.   The agreement should also address inheritance issues.    This is critical for couples with children marrying for a second time.   

A couple can enter into an agreement at any time.    A pre-nuptial agreement is entered into prior to the marriage.   A post-nuptial agreement, which is legally binding in Massachusetts, is entered into after the marriage.   Both of these agreements deal with the same issues:  how the couple will share expenses, what alimony each spouse will be entitled to, how the couple's property acquired before and after marriage will be divided in the event of divorce, and how the property will be distributed after the death of a spouse.    Although no one likes to think about divorce, couples should view the Prenuptial Agreement or Post Nuptial Agreement as a document that can benefit both of them and that provides important information about each other and their rights and obligations after marriage. It is an important part of Estate Planning.

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