[B]oomers have become more anxious to hold on to whatever they have left, says Gabriel Cheong, a divorce attorney with Infinity Law Group LLC in Quincy, Mass. Today, the majority of inquiries come from boomers “concerned about protecting their assets,” he says. “Not just with the markets, but with protecting their spouses and children.” And they often enter a marriage with substantial assets—and children from an earlier union.

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• The future husband and wife must have had separate attorneys to represent them
• The parties must have made a full disclosure of their assets, debts and income
• The Agreement must contain a discussion of the section 34 factors used in divorce

In addition to the above requirements, the prenup should be drafted and signed at least 6-months prior to the date of marriage. Although this is not a requirement, it should be followed.

The article recommends that couples learn about each other’s (1) assets and liabilities, (2) money history, (3) outlook on financial duties, and (4) organizational goals regarding money.

All these are great suggestions along with the New York Times article but what they don’t mention is that a prenuptial agreement is the perfect instrument to facilitate this talk.  Whether a couples has money or don’t have money, a prenuptial agreement forces the couples to divulge their assets and liabilities and in the course of talking about finances, you will inevitably discuss each other’s financial history and each other’s outlook on how to handle money.

As with most things in life, it’s all a state of mind.  You can either see the glass as half full or half empty.

When my clients come in, I spend a great deal of time with them talking about not just their finances and what they want in the prenuptial agreement, but how they feel about each other and how they feel about the whole process of negotiating a prenup.  I get the usual response that it’s unromantic, uncomfortable and awkward to bring it up.

“Well,” I tell them, “consider that almost half of all marriages in the United States end up in divorce.  And a majority of those getting divorced cite arguments over money as the primary reason for the divorce.”  I continue, “You should think of a prenup as hedging against those odds.  If you and your fiance have come together to clearly talk about your goals and outlook about money before you enter into marriage, you essentially eliminate the primary reason for divorce.”

I also tell my clients that instead of starting out on a road where you don’t know or see the path, a prenuptial agreement lays out a clear path so you know what could happen because you’ve seen a map of it.  You plan now, out of love, rather than letting hate guide your actions in case of divorce.

If you can see and accept this concept that a prenuptial agreement is a plan of love, then it can be romantic.  It can be a comfortable talk.  And it will be easy to talk about it.  While you’re at it, dim the lights and have a glass of wine.

Many courts around the country have ruled that a contract entered into after marriage is not as strong as a contract entered into before marriage.  Courts are very skeptical when it comes to postnuptial agreements because there is inherently a coercive factor in the agreement.

The typical scenario that leads up to a postnuptial agreement is when one spouse wants to keep the marriage going while the other spouse doesn’t.  The unwilling spouse draws up a postnuptial agreement for the willing spouse to sign and makes it a condition of staying married.  The spouse signs it hoping to save the marriage enough though the terms of the agreement is against his/her interest.  This is the very definition of being coerced.  If a contract being entered into is not absolutely and entirely voluntary, without any form or coercion, then it cannot be valid.

Does that mean that you shouldn’t even bother with a prenuptial agreement?  No.  It means that the two attorneys working for the couple in the case must be very careful and explain the process that’s involved and what the courts generally look at when a prenuptial agreement is challenged.  If the attorneys do their jobs, then a prenup that’s drafted in accordance with known laws will be as safe and enforceable as it can be under the circumstances.

1. One spouse pays it all.  Sometimes when a spouse has all the earning power, it makes sense that they pay for everything.  It might be that the spouse wishes to take care of the other spouse and the relationship has always been so.
2. The expenses are split 50/50.  Whatever bills that come in, be it the mortgage, car payment, child care, credit cards, utilities – they are all divided equally between the couple.  They each pay half.
3. Everything is separate.  The couple will keep all their finances separate.  There would be no joint accounts, be it credit cards, car payment or mortgage.  Everyone pays what their name is associate with.  No muss. No fuss.

I have seen variations of all of these and they work for some people.  The plan that I believe works the best is none of the above.  The plan I believe works is based on paying equal percentages.  How it works is this:  each spouse has their own separate individual accounts and they have one shared joint account.  Paychecks are deposited into their respective individual accounts.  Household expenses are paid from the joint account.

The trick is determining how much of each spouses’ salary is deposited into the joint bank account.  If both spouse deposits an equal percentage into the joint account, it should be enough to pay for all the bills.  Note that equal percentages is not the same as equal amounts as described in example 2 above.  If Mary makes $1000 and she has to contribute $500 while her husband Bill makes $10,000 and he also contributes $500, they are contributing 1/2 of the expenses but not equal percentages.  That is because $500 of Mary’s salary is a bigger percentage than $500 of Bill’s salary.

Why is equal percentages more fair than an even split of all expenses?  It is because contributing equal percentages leaves both partners with the same percentage of their income to themselves.  It gives them the same spending power and it spreads the burden.  When the power dynamics of a marriage is closer to equal, it provides for a more harmonious marriage.  There is no inequity because each spouse is contributing to an equal percentage of the upkeep of the household.

Given that almost half of all marriages end in divorce and a majority of those that get divorced is due to arguments over money, a scheme that will equalize and benefit both parties financially in a marriage will hopefully make the marriage last and avoid the most common cause to divorce.

Your parents, grandparents, aunts and uncles are all probably older than you and in time, they will pass away and leave you an inheritance.  Once you receive that inheritance, that money becomes not just yours but also belongs to your spouse.  This is especially true if you commingle the funds or live in a community property state.

You might think to yourself though, what’s the harm in having my inheritance belong to both of us if we’re married and in love?  Because you can’t be sure at the time you receive your inheritance, that you’ll still be in the same state of marital bliss.  And if you’re not, you’re in trouble.  At that point, it would be too late to keep your inheritance separate.

The key is to plan now to have your inheritance separate and if at the time you do inherit money and you are still happily married, you are free to share it with your husband or wife.  But if you are not happily married, you don’t have to.  It’s a choice that you’re giving to yourself.  Hope for the best, but always plan for the worst.

The issue with online prenuptial agreement forms is that no one ever sat across from you to gather information and to counsel you on the validity of the prenup.  The reason why prenuptial agreement lawyers charge the fees that they do is because they are giving you something that a computer program cannot – independent and personal legal advice.

A couple of quick reasons why the prenuptial agreement this woman called about would not have been valid is that it was too short to contain any financial information about the parties.  Both parties in a prenuptial agreement must trade detailed and complete financial information.  Secondly, in a generic prenup, there would not be any discussion of the  ”section 34″ factors that is required here in Massachusetts to be in a prenuptial agreement.  There is specific case law in Massachusetts that requires this and a non-state specific prenup would not have this.

If you’re going to spend the time and money to draft a prenuptial agreement, spend it wisely and don’t print one out online.

These 4 things (and more) is what I discuss and get my clients to discuss with their fiance when preparing a prenuptial agreement.  As I’ve said before, these conversations must be had before anyone gets married, with or without a prenuptial agreement.  Lisa Peterson, the founder of Harmoney, who I have had the pleasure of meeting, provides a great service to engaged couples where she helps facilitate this conversation over money with them.  Sometimes, it’s easier to have someone help you and your partner talk about such a sensitive and often contentious subject.

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Money Talks To Have Before Marriage