NEW YORK (MainStreet) — You don’t have to be rich and famous to need a prenuptial agreement. Couples without assets when they walk down the aisle may still need a prenup to protect themselves or their inherited assets, experts say. Here’s a look at the most common reasons why the young and broke should think about hiring a lawyer before they say “I do.”
To make it clear whose debt is whose
It’s not uncommon to see prenups drawn up when one half of a couple has significant student loan debt, says Eric S. Solotoff, partner at the firm Fox Rothschild in Roseland, N.J.
“Typically, premarital debt would be separate debt anyway, but sometimes things get blurred by refinancing and debt consolidation over the years,” he says. “If one person comes in with significant student loan debt, it might make sense to make it clear who is singularly responsible for that debt.”
Even if the marriage doesn’t end in divorce, student loan debt can create problems in a marriage if things aren’t clearly laid out, Solotoff says. For example, if times are tight and there’s only enough money for rent and food, who is responsible for the student loan payment? Also, student loan debt might one day get rolled up into housing debt, thus becoming the responsibility of both parties.
“Couples may want an agreement that lays out exactly who is obligated to these loans. If you are debt free, you probably want to ensure that those loans never come back to your doorstep,” he says.
If they have significant family money or a trust fund
Even if you don’t have a lot of money right now, you may inherit a hefty sum of money or receive a trust fund one day. It’s smart to protect those assets up front.
Inherited assets aren’t usually considered as marital assets in a divorce unless they are bequeathed to both parties. But when “commingling” of those assets happens, they become fair game in a divorce. For example, if one spouse inherits family money and uses it to buy a home in which both parties live, that home becomes a marital asset, says Michael Gilden, partner at the firm Kopelowitz Ostrow in Fort Lauderdale, Fla.
“If you commingle your inherited money, you lose the separate nature of that inheritance and it becomes martial property,” he says. “You may not be wealthy now, but you want to make sure you have your inherited assets insulated from your spouse should you get a divorce.”
A prenuptial agreement can be drafted in a manner that protects inherited assets even if they are commingled, Gilden explains.
“Even if you buy a car or a home that you both use, the prenup can be drafted to explain ownership of those assets,” he says. “Make sure it spells out that any funds whatsoever that come from your inheritance are separate property.”
The same holds true for a trust fund, Solotoff explains.
“You have to make it clear that the trust isn’t considered as marital property. With the right prenup, even if the trust was used to enhance the couple’s lifestyle, it can’t be taken into account for alimony. It can be exempt from consideration of what’s available to pay support,” he says.
To protect the family business
Many times, when a family business stands to be inherited, the family will step in before a marriage and insist that a prenup is used, Solotoff says.
“When there’s a family business that might not be in your name right now but may be in your name at some point, the family will often push a prenup to keep the business free from interference in the future,” he explains.
Most prenups make it clear that the business is always a separate asset — even if the non-inheriting spouse helps to increase the value of the business during the marriage.
“Even if the spouse works at the business or puts in a lot of sweat equity over the years, a prenup can exempt any increase in the value of the business during the marriage,” he explains. “In most states, your efforts during a marriage to increase the business’ value would be considered a marital asset, but a prenup can exempt those from consideration.”
Note that the business never has to be listed in both parties’ names for it to be considered marital property, Gilden cautions. Also, to “increase the value of a business” a spouse needs do little else besides maintain the home. They can argue that while they were home cooking and cleaning, their spouse was free to work at the business.
“In the event of divorce, you don’t want to litigate over whether or not a spouse has contributed to a business’ ability to increase in value. That’s the whole point of a prenup — to avoid protracted litigation that eats into business assets,” he says.
To protect professional licenses
Professional licenses — those belonging to a doctor, lawyer, financial adviser, nurse or other professional — can be considered as a marital asset in some states and are often worth anywhere from $30,000 to more than $1 million.
The equation for how much a professional license is worth is a complicated one, Solotoff says. It may be based at least partially on the cost of the education/license itself, and the future “earning potential” associated with the license.
“A law degree or a medical degree can be valued separately from a medical practice or legal practice,” Solotoff says. “If you obtain that license during the marriage, the value of it is an asset that could be divided.”
Young couples just starting their careers may not think of protecting their licenses in a prenup, but parents may insist on it, he says.
“If mom and dad are paying for your education, they may not want to see you split the value of your license should you get divorced in future,” he says.
— By Kathryn Tuggle for MainStreet