Prenuptial and postnuptial agreements

Ahh, the romance of determining how you will break up when the affair is in full bloom. Prenuptial and postnuptial agreements may not fan the flames of desire but they are a very practical tool for managing the fact that marriage occurs between humans, not saints or angels.

You may think that that prenuptial and postnuptial agreements are for rich people with lots of assets.  While the prenuptial agreements you hear about tend to be the more high-profile ones, they’re actually more common than you think and are increasingly practical for the middle class, particularly if you have assets or children prior to the marriage.

So what exactly are these contracts?  A prenuptial agreement is executed prior to marriage while a postnuptial agreement is done after marriage.  The laws vary slightly on what can and can not be agreed upon in either document.  Generally they contain provisions regarding spousal support and division of assets should a break-up occur, protection of assets brought into the marriage by each party, and penalties for “bad behavior” (i.e., adultery).  They rarely contain provisions for custody of children (this is usually settled by the courts).  They may contain an expiration date, after which the marriage is subject to jurisdictional laws.

There is never really a good time to bring up a prenuptial agreement but the best time to bring it up is as soon as possible.  Put it out there in casual conversation when the talk to turns to marriage.  As long as he knows what your thoughts are on the topic, he won’t be surprised when you ask him to sign on the dotted line.

These agreements can take months to finalize so it’s best to start cracking on it earlier rather than later.  A good option is to use a mediator to hammer out the details then use an attorney when signing the documents.  Using attorneys to do the negotiation is expensive and may get contentious as each attorney attempts to represent their client rather than the relationship.

Common law what?

So here’s a nasty little tidbit about living together – common law marriage.  You can find yourself inadvertently married if you live together for a specific period of time and present yourselves to the world as husband and wife.  This might have been handy  in the old days when perhaps it could be a while before a judge or preacher became geographically available but these days it’s a scary proposition.

Check the regulations in your area as laws can vary between states and provinces.  Some require as little as 6 months cohabitation (although the standard seems to be approximately two years).  Some jurisdictions require less time if a child is involved (although not as one of the partners – that’s a completely different type of marriage).  Be aware that the laws that protect marriage partners do not always extend to common-law partners.

Be careful how you refer to your partner.  If you jokingly refer to your live-in boyfriend as your husband (or domestic partner or old ball and chain or…well, you get the idea), you may be giving the rest of the world the idea that you are married.  Remember what I was saying about keeping your finances separate?  You might not want to list him as your next of kin on any medical, legal, financial, or insurance documents.  Saving a few bucks now can cost you big later.

If one of the partners moves to get the “marriage” officially recognized by the court system (warning – this can occur even after separation), then an official dissolution of marriage will be required before either partner can get married again.  Also, with a dissolution of marriage comes a division of assets.  Did you get it in writing?

Even if the marriage isn’t officially recognized, your ex-partner can make life very difficult if he wishes to. You may end up in the court system as he tries to assert his rights to your assets or even your paycheck.  Play it safe.  Know the laws in your area and be smart about protecting yourself.

Getting it in writing isn’t about penmanship

So here is a novel idea when it comes to your relationship – go to a lawyer and get a cohabitation contract drawn up.  I’m not talking about who does the dishes and who takes out the trash – if you can’t handle that without an attorney then you have bigger problems than the simple division of labor.

A cohabitation contract is to erase any doubt as to what happens in the event of a break-up.  Things that may be included:

  • An outline of who brought what into the relationship and the agreement that assets held prior to the contract remain with the person who brought them into the relationship.
  • How bank accounts are to be divided.
  • How property is to be divided and who gets to stay in the house.
  • How other financial assets are to be divided (investment accounts, retirement accounts, etc.)
  • How debt is to be divided and a timeline for repayment to creditors.
  • How are prized assets (think more sentimental value than financial value) are to be divided (this is where you would include your Nan’s china).
  • How gifts are to be divided (you’d be surprised how many couples fight over a microwave given by a parent).
  • Custody agreement of pets and/or children.
  • Fill-in-the-blank letters to companies outlining the division of assets/debts and requesting the removal of partner from the account.
  • Confidentiality agreement to protect the reputations of both parties.
  • Agreement to use mediation or arbitration to resolve any outstanding disputes.

Direct from my desk – week 30

Obviously if you’ve read my blog in the past week you realize that I’m against co-mingling of just about anything before marriage.  I may sound like a bit of a spoilsport but the statistics on successful relationships are not in your favor.  It sounds terrible, I know.  I don’t mean to sound like a Negative Nelly, I just want you to be realistic about your relationship.

A successful long-term relationship requires a lot of work, both in the beginning and continuing through the course of the involvement.  When we are in the throes of passion, the last thing in the world we’re thinking about is boring stuff like setting the foundation for a good future – we’re too busy being enthralled by our new love.  In the giddiness of a new relationship, things like finance and legalities seems to dim.  Unfortunately, if you break up – a big old spotlight is going to be shining on each and every poor choice you made at the inception of the relationship. (This includes not using protection before asking to see someone’s current health report!)

I’m not trying to stop you.  I’m trying to slow you down – if only just long enough to think about the long-term ramifications of your decisions.  A lease may not seem like a big deal until you move out and he doesn’t make the payments, affecting your credit for years.  Living together may not seem like a big deal until he does a favor for a friend, like hiding evidence of a crime, and you get arrested for being an accessory-after-the-fact.  Not everything will seem like such a big deal when it happens because you’re thinking that you’re going to be together forever.  However, what happens if you’re not?  What happens then?

My mailbox is open:

Why you shouldn’t live together

This advice flies in the face of all modern conventions but don’t live together before you get married.  This isn’t religious nor is it “conservative values”.  It’s practical and here’s why:

  1. The decision to move in together is often made prematurely and isn’t based on lifelong commitment. It may be based on overly-romantic notions (I want to spend every waking moment with you!) without really considering if this person is a good potential marriage partner.
  2. It may be based on momentary practicalities (I’m spending 5 nights a week here anyhow, we might as well split the rent) rather than looking at how this will entangle your legal and financial lives.  If your name is on the lease and he moves out, you’re still responsible for all the rent each month until the lease expires.
  3. A guy will often suggest living together in order to give the illusion of the relationship “moving forward” without there being any actual deepening of the commitment.  (Note:  This isn’t all guys but it is some guys.)
  4. Living together gives the benefits of marriage without having done the work first.  This will almost certainly cause the relationship to be more difficult than necessary because the intense discussions about long-term goals and values are not taking place.
  5. Living together has not been proven to increase the chances of a viable marriage.
  6. Last but not least – why would you pick up after a man before you’re legally required to?  (Despite everyone’s best efforts, household roles still fall into gender-based stereotypes.)

Yours, mine, and ours

In a relationship of any significant length, the lines of object ownership tend to get a little blurred.  Anything that you leave at his place, he leaves at your place, or you buy together may be up for grabs in a break-up.

Going back to the drawer I suggested in I don’t remember putting that there, put whatever he leaves at your house in the drawer so that your place isn’t messy and so that you know exactly what is and what isn’t his at your place.  Should a break-up occur, you can simply empty the contents into a box and hand it back to him (if you didn’t plan a ritual burning of his stuff – which I don’t recommend- it’s bad for the environment you know).  It also ensures that you won’t be finding odd souvenirs of your relationship long after it is toast.

I can not stress enough that you shouldn’t leave anything at his place that you can’t afford to lose.  We tend to be terrible about absentmindedly leaving stuff at his place.  Remember, his place is not your place so if you value your mom’s earrings, make sure they go into your purse, not onto his nightstand.  In the event of a breakup, don’t expect him to turn his place upside down looking for everything you say you left there.  After a cursory glance around the room, he’ll simply tell you that it’s not there.  We get involved in Prince Charming but we break up with Rumpelstiltskin.

The tricky part is when you buy stuff together or are given joint presents.  As unromantic as it sounds, keep receipts (not just for insurance purposes). I prefer a rip-the-bandaid-off-quickly approach and leave him everything (if this gets too expensive, you might be being too generous when offering to buy stuff to keep at his place).  You’ll gain nothing by making margaritas with “our” blender.  However, if you truly love something that you’ve purchased or been given together, consider paying him out his half so that you can keep it.  Or barter with him, he can keep the microwave as long as you get the espresso machine.  It is not particularly helpful to call dibs on an item when you purchase it as dibs is not considered a verbal contract in a court of law.

As much as possible, keep things separate until you have a legally binding contract to share expenses.  Try not to get too emotionally attached to objects, they won’t keep you warm at night (unless it’s a space heater or electric blanket).

Of course I trust you

Trust is huge in a relationship.  Trust issues are insidious and can quickly undermine an otherwise good relationship.  Unless your partner has specifically broken your trust in the past, trust issues are generally about the person who has them.  My advice – quit trust issues cold turkey.

  • If you have been hurt in the past please realize that this has absolutely zero to do with your current relationship.  Take each person as an individual and don’t make them pay for another person’s mistakes.  If you can’t start fresh with someone, you may have to look a little deeper into yourself or your relationship.
  • Snooping is unacceptable.  The more you dig, the more paranoid you become -even if you don’t find any “evidence”.  If you don’t trust your partner, you may wish to reconsider why you’re in the relationship.
  • No interrogations.  Discuss any concerns rationally but don’t get emotional and don’t browbeat your partner.  No one wants to be involved with someone who is constantly suspicious of them.
  • Believe what your partner tells you.  I’m not saying to believe lies (if he’s lying to you, this isn’t the right relationship) but if he says that he’s playing poker with his friends, believe that he is playing poker with his friends.  If it turns out later not to be true, it reflects badly on him, not you.
  • Refuse to give into your desire to “check it out”.  If you’ve already looked him up on the internet, searching again will not make you feel better and you’re not likely to find any new information.  Calling his cell phone at all hours won’t yield the desired results.  Following him is bordering on the insane.  If your relationship is driving you to these lengths, you should reconsider your involvement with this person.
  • If you honestly believe he is being deceitful, break up with him.  Do not bother confronting him because a conversation will not resolve your insecurities.  Consider that if you ask the question you will get one of two answers.  One answer will kill you.  The other answer you will not believe.

Are there men who lie?  Absolutely.  However, living as though every man lies will not improve the quality of your life. If you go looking for bad news, you will invariably find it.

The key to his heart?

You met the boy, dated the boy, you’ve met each others people, and you have a few things at his place.  Slowly but surely the relationship is progressing until one day he presents you with a small box.  Is this what you think it is?  It is shiny and it is metal but alas it’s only a key to his place.  Why do I say only when it should be a significant step in a relationship?  Because it’s mired in ambiguity and opportunities to screw up.

Obviously he’s thinking of this as a step forward but have a conversation with him about what a key means.  Is it for emergency access?  Is it so that you can lock up on Sunday morning while he goes for a run?  Is he expecting you to be in lingerie with a martini in your hand when he comes home from work?  Have him be explicit about what is and isn’t acceptable so there are no miscommunications (and no hurt feelings when you try to do something nice and he freaks out about you “trying to take over” his life).

Once you’re given the boundaries – respect them.  Do not use the key for snooping (people who snoop deserve what they find) or any sort of homegirl investigation (you’re not a private dick).  Do not use his place to hang out, store stuff, drink his booze, or entertain friends.  Think twice before using it for anything he doesn’t already know about and approve of.  A key is nothing more than temptation in your pocket.  Consider it before accepting.