Our new Deficit Watch; help your child get a job; writing prenups right; collectible radios A QUICKIE GUIDE TO PRENUPS FOR TRUMP, GATES -- AND YOU
(MONEY Magazine) – Isn't it romantic? These days more and more affluent couples -- beyond such likely candidates as Marla and The Donald or Microsoft's billionaire Bill Gates and fiancee Melinda French -- are asking ''How much?'' before cooing ''I do.'' That is, one or both parties are insisting on prenuptial agreements before tying the knot. Indeed, prenups are now signed prior to roughly 5% of all marriages and 20% of remarriages. Matrimonial attorneys applaud the trend -- and not just because they pocket $500 or more for drawing up the pacts. Lawyers and financial planners agree that a prenup is well worth the expense when either of the spouses-to-be have children or assets they want to protect. The hypothetical prenuptial agreement below, with notes keyed to the text, illustrates what you -- or Donald, Marla, Bill and Melinda -- might want to include or avoid in your own contract.
AGREEMENT, made in Los Angeles this fourth day of June 1993, between Sally Bride and John Groom. Anticipating that they will be married on June 5, 19931, the parties desire by antenuptial agreement to fix their rights . . . NOW, THEREFORE, they agree as follows: Sally and John have each disclosed their assets, described in the attached Schedule A2 . . . The separate property of each shall remain separate during marriage, as shall any gains made from reinvesting it. All other property acquired during the marriage shall be considered joint property, including, but not limited to: (i) salaries; (ii) real estate3 . . . Each party hereby waives all claims he or she may acquire to the other's property by reason of marriage under the laws of California4. In the event of death, John shall provide to Sally via his will: (i) his interest in their home; (ii) all household goods5 . . . In the event of divorce, the parties shall have joint custody of any children of the marriage6 . . . John shall provide Sally an annual income of $40,000 if the marriage lasts more than three years but less than five; $60,000 if more than five but less than nine7 . . . Responsibilities during the marriage shall include: (i) Sally will cook, (ii) John will wash dishes8 . . . In no event shall either party be liable for any debt owed by the other9 . . . John hereby acknowledges that he has waived his right to independent counsel10. IN WITNESS WHEREOF, the parties have hereunto set their hands and seals.
1 Oops. By signing one day before the wedding, Sally and John weaken the agreement since a clever lawyer could argue later that one or the other signed under duress.
2 They should list everything. Any omission, even an innocent one, could void the contract.
3 Again, be precise: This language gives John half ownership of Sally's future 401(k) contributions. If she wants them kept separate, she must say so.
4 Despite what the contract said earlier, John could still claim 50% of Sally's assets without this clause. Reason: California is one of nine community property states, where marriage gives each spouse half of all property gained during the union (except inheritances).
5 If John wills his share of the house to a mistress, Sally may be able to block it -- since a prenup signed by both parties controls a will signed by one.
6 In a contested divorce, this clause will not be binding because it takes away the court's right to determine the children's best interests.
7 This kind of alimony provision is becoming increasingly popular in prenups. But Sally should ask for percentages of John's salary, not fixed figures, to guard against inflation.
8 These so-called soft issues are harmless but virtually unenforceable.
9 Nice try, but in a community property state like California, a retailer, say, can still come after Sally for payment of John's overdue bills.
10 By letting Sally's attorney draft the agreement, the couple have weakened it again, since John could argue later that he was discouraged from seeking his own lawyer. Some experts recommend videotaping the signing to guard against later claims that one or another party was being coerced.