Prenup Agreements: What to Do Before 'I Do'

Romance is in the air again, and it might be the time to pop that special question: "Do you want to sign a prenuptial agreement?"

The challenge is how to do it without getting slapped.

Most prenups will segregate the spouses' assets in an attempt to ensure that if a marriage ends, the couple will be treated as though their lives had never been shared in a financial sense. Whatever you earned before and during the marriage will remain yours, and jointly owned property will be divided.

But prenups vary widely, and some can also include bizarre terms, like the written promise that a partner won't go back on drugs or that the wife will get $1 million more in alimony for every time her husband cheats on her.

The government can only enforce prenuptial provisions for which it has a system in place. For example, if you want to stipulate who will wash the dishes in a prenup, keep in mind that so far, nobody in the U.S. has been arrested for committing the crime of leaving a plate in a sink.

Prenups are "drafted in a way that some provisions are enforceable and some are not," says Lee Rosen, a divorce lawyer in North Carolina and the CEO of Rosen Law Firm.

Despite the risk that a badly-written prenup gets thrown out in the event of divorce, lawyers have been getting more requests to do the agreements in recent years. The American Academy of Matrimonial Lawyers said in October 2006 that 80% of lawyers surveyed saw an increase in the number of prenups during the past five years. Nearly two-thirds of respondents said the prenups were most often sought by men and women ranging between 40 and 60 years old, according to the survey.

If you decide to join that group, experts recommend that you and your partner first get representation from two separate attorneys.

"Each person should have that to avoid conflict of interest," says Arlene Dubin, a partner at Moses & Singer LLP in New York. "You want somebody who's totally objective and focused on you to give you guidance about whether this is an appropriate tradeoff."

And yes, she means the lawyer, not your future spouse.

Dubin feels so warmly about prenups, she put her own agreement inside a Tiffany bowl in her living room along with her dried wedding bouquet, according to her book, Prenups for Lovers: A Romantic Guide to Prenuptial Agreements. She says that by encouraging a discussion about your finances, it's possible to negotiate a deal with your intended in a way that will strengthen the bonds between you. "People should be open and honest and direct," she says.

So, what if your future spouse is involved in something like an illegal tax-avoidance scheme? Lawyers say prenup agreements only hold water with the judge when both parties signed them in good faith and with adequate information.

Unless you're willing to put it into writing that you've smuggled most of your funds into an account in the Cayman Islands, anything you sign could become void in court.

Your lawyer can help you draw up a decent contract, and accurately disclose your financial information, if you're willing to provide things like tax returns going back a number of years, pay stubs, details about loan agreements, and so on.

Given all the fun and games involved with putting together a prenup, these agreements can cost between $1,000 and $50,000, depending on where you live, how much your two lawyers charge per hour and how long you wind up sharing and/or dueling with your dearest beloved about the legalese. Prenup negotiations can last days, or even months.

You need to allow adequate time before the wedding, too. If it's too close to the nuptial date, it could be argued that the prenup was signed under duress, and is therefore invalid.

"If it's for next week, a lot of lawyers won't do it," says Sharyn Sooho, an attorney and co-founder of DivorceNet.

If you want to do your own homework, you can research the rules on prenups as they pertain to your state at DivorceNet.com. The Web site includes a directory of lawyers, as well as links to articles and organizations that might help you look up things like your local bar associations or university law libraries.

You can also hunt for attorneys capable of providing advice at Lawyers.com, which shows you details including areas of specialty, education and the size of the firms.

You might decide in the end that it's OK not to bother. When Michael Honig, the founder of Honig Vineyard and Winery in Napa County, Calif., had to settle the financial aspects of separating from his wife a few years ago, they managed it without too much acrimony, even though they didn't have a prenuptial agreement.

Honig feels satisfied with the way his assets were allocated by the California courts, which determined what was fair to both parties by considering the law and precedents from similar cases in the past.

"We tried to have decency," Honig says. "Money can be replaced, but your dignity can't."