How to Negotiate a Prenuptual Agreement

Protect Your Assets:  Q&A with Patricia M. Annino, Esquire

Question:  I am 43 years old and am marrying a 58 year old man who is significantly wealthier than I am. He is divorced and has three grown children from his prior marriages. He has made it clear to me that he expects me to sign a prenuptial agreement. He has been very generous with me and I am concerned that if I negotiate the terms he suggests it will appear that I am marrying him for his money. What should I focus on?

Answer:

A prenuptial agreement is a very serious contract. It addresses what rights you have to his assets if you divorce or he dies. The courts are increasingly upholding prenuptial agreements if they are fair and reasonable. Some cases have gone so far as to say that a prenuptial agreement will be upheld unless it is unconscionable not to do so. Generally to be valid a prenuptial agreement should meet three criteria:

1)      The agreement should be fair and reasonable when the marriage is entered into and fair and reasonable when the marriage terminates

2)      Both parties should fully discuss their assets and liabilities

3)      Both parties should be represented by separate attorneys who explain to them what their rights are.

It is interesting that fair and reasonable does not mean that you are entitled to a higher standard of living because you married a man that is wealthy. For example, in a recent landmark case a man with a family business worth over $100,000,000 married a woman of modest means. They negotiated a prenuptial agreement that provided that if the parties divorced the wife would receive the home they last lived in, $35,000 in annual alimony adjusted for inflation and a new car. After seven years of marriage and one child they divorced. The wife tried to convince the court that the prenuptial agreement was invalid because it was not fair and reasonable. The judge ruled for the husband, ruling that both parties to the contract were adults represented by lawyers who understood the terms of the agreement.

So be careful-walking that tightrope between agreeing to something that you feel is fair and not appearing to be after his net worth is very tricky.

You may negotiate the agreement so that at certain intervals of marriage-5 years, 10 years, 15 years, etc the amount increases. Of course, there are risks with those intervals because right before an increase the marriage can be re-evaluated. It is also possible to negotiate that the prenuptial agreement sunsets-or stays in effect only for a certain number of years. The agreement can be amended during the marriage-and both parties must want to do that.

The bottom line is understanding that unless there is fraud; what you do agree to will probably be upheld by a Judge.

Patricia M. Annino, Esquire, is the author of the highly acclaimed book, Cracking the $$ Code: What Successful Men Know And You Don’t (Yet). Patricia is in demand nationally as a speaker for womens’ organizations on assorted topics.  Patricia works with organizations and women looking to educate and empower them to plan and work smarter with their finances and estates.  For more information visit:  www.patriciaannino.com

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