She's against a prenup, I won't marry without one, are we doomed?

[RayKay]

Only one poster here said she was a nanny or maid. Everyone else, myself included, said this is NOT the case at all and no way would I marry someone whom thought that (a good point here is that if someone I was discussing marriage with felt that way, it would probably come out during prenup discussions and I could avoid marrying them in the first place!).

 

Anyway, she would not get “nothing”. A court would not enforce that kind of agreement here.

 

Also, you are mistaken as actually if you don’t have a prenup that everything is shared. It may be your “idea” but that is not the law in most places up here in Canada. Pre-acquired assets and debts aren’t shared in many jurisdictions (they aren’t here). What is shareable is the appreciation/income during marriage on those pre-acquired assets and assets acquired during. So no, if you divorced you would not take on his pre-acquired debts and he would not g et your pre-acquired assets. Unless of course you agreed to that in a prenup!

 

Courts will divide everything else that comes during the relationship equally. Prenups allow you to however make arrangements for what if those pre-acquired assets are changed, or allow you to make arrangements to share them after all, or allow you to determine whether one person will be able to remain in home (otherwise you could be ordered to sell it and for many reasons some people prefer to stay in the home). MANY factors like that that go beyond dividing property.

 

It is a mistake to think that prenups are just about how to divide cash or all balanced in favour of one person. It is also a mistake to think non-financial contributions are not considered. I already stated that if my partner were to stay at home for example with children, I would want a prenup to be MORE fair than the law to recognize that and ensure that I was helping him to become self sufficient with more tuition for education for example if there was a divorce.

 

I don’t see it as negating the marriage contract. For me marriage is about a commitment, legally, to care for the other and to work together during your union. A prenup is a commitment to care for one another if your union ends and to work together even AFTER your union ends, if it does.

 

I just honestly don’t see why prenups are seen to be so unfair, when they allow couples more freedom to develop something more fair to them both, that they agree on between themselves, rather than having a court impose it. The law can be far more unfair in these cases....

 

Of course it is fine if a couple does NOT want one, their choice. But just because another couple does want it it does not in ANYWAY say “I am marrying someone whom is going to run away with my money”. Not for me anyway. By the way, if I was to get married at this very moment to my partner *I* would be the one in debt and with less assets (just pretending we don’t have common-law here) but I would still very willingly have a prenup with him because I know we would both fairly negotiate something that suits us both, and in the event that things do not work out (and again, I am not in any way saying I think they won’t but you NEVER know) it may make the very traumatic experience of divorce at least a little less traumatic and awful.

[shikashika]

In my opinon, the marriage is the contract.... and yeah I do feel a prenup negates a marriage contract. If people just want everything to be divided according to their prenup... why even bother with the marriage part? Why not just set up your own common law conract.

 

Essentially a marriage is saying 'until death do us part', but by providing a prenup, it's not until death do us part anymore.

 

 

Yes, it most definitely is my idea. That's how I see marriage. It's 'us' instead of 'bits and pieces are mine and these bits here are yours' To me, that isn't a marriage.

[RayKay]

Here are a couple articles on prenups (the why’s, what’s and how’s) and how to approach the issue

 

This one talks a bit about the Canadian experience with them, and how different provinces have different family property laws, so will need different agreements

 

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A more general one, but geared more towards those marrying later, or on second/third marriages

 

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And how even those against them might find they are just as good for them (more US orientated)

 

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And another US orientated one

 

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And from the above link (I liked this):

 

Remember Some people may be hesitant to enter a prenup with their beloved, because they believe it destroys the romance and fantasy of their upcoming marriage. A prenuptial agreement, however, gives a couple an opportunity to share their hopes and dreams with one another and articulate their aspirations. The best chance of living up to one another's expectations is knowing what they are in advance and finding out what it is that your partner holds dear. A prenup can intensify the pleasure of a relationship by drawing out the couple's desires, promoting communication and enabling partners to establish for themselves the rules of their marriage. By virtue of this process, a prenup protects the romance that launched the couple and makes happily-ever-after more likely. A relationship based on reality is stronger than a relationship built on illusion.

[RayKay]

In my opinon, the marriage is the contract.... and yeah I do feel a prenup negates a marriage contract. If people just want everything to be divided according to their prenup... why even bother with the marriage part? Why not just set up your own common law conract.

 

Essentially a marriage is saying 'until death do us part', but by providing a prenup, it's not until death do us part anymore.

 

 

Yes, it most definitely is my idea. That's how I see marriage. It's 'us' instead of 'bits and pieces are mine and these bits here are yours' To me, that isn't a marriage.

 

Well, sure you can do that too. Many people have cohabitation agreements too.

 

But someone can want to get married and still want to have an agreement. It does not mean they should not get married and does not mean they are not accepting the obligations of marriage. They are just TOGETHER deciding what is right for THEM as a couple.

 

As I said more than once, it seems those with prenups actually are MORE likely to stay together.

 

I understand how you feel it says “till death do us part until I don’t feel like it” but that is not in the least how I feel about it. I cannot guarantee what my partner will feel in the future, or what may happen in the future. I am committed to him and want to be with him for rest of my life, but could I say the same if he DID cheat for example? He is not someone I believe would, or I would not be with him, but I cannot guarantee anything in life, just that I will try my best.

 

A prenup for me also allows us to be MORE fair to one another than the law and will indeed ease some of the “War of the Roses” situations that can arise if we DO separate.

 

Well, yes, I know it is your idea. I was not saying it to be dismissive. I was saying it to say that that does not mean that is the LAW’S idea. Even if you did not have a prenup, you will find the law, depending where you are, will not divide the assets in the way you think is fair (i.e. everything shared)…that is why some people opt for prenups because the law does not always decide it fairly. For example, here our pre-acquired assets would NOT be shared. We could make a pre-nup saying they ARE to be shared, which would be more in line with “what’s yours is mine and mine is yours” than the law is.

 

I could agree to pay him more spousal support so he could continue to be a stay at home dad, which the law wouldn’t “implicate” recognizing how valuable his contributions are. If I had chosen not to go to school to stay home with kids, we could of opted to have an agreement where if the relationship terminated he could pay for a two year college to help me become self sufficient. The law might do that, but not necessarily. There are MANY ways you can be even MORE fair to EACH other in a prenup than the law would allow.

[DN]

Essentially a marriage is saying 'until death do us part', but by providing a prenup, it's not until death do us part anymore.

 

That might be true if it were not for the high divorce rate. But, as I said before, the fact is that none of the traditional wedding vows that people make are enforceable any longer and most people know that they won't have to live up to them if they choose not to - the only exception has to do with money.

[Excalibur]

A prenup protects what you go into the marriage with. Discussing a prenup when you're without financial resources, material assets and professional acclaim is a non-issue topic.

 

If you have those things, people generally will agree to marry you, sign the prenup - living while together in a lifestyle they couldn't create for themselves on their own.

[DN]

A prenup protects what you go into the marriage with. Discussing a prenup when you're without financial resources, material assets and professional acclaim is a non-issue topic.

 

If you have those things, people generally will agree to marry you, sign the prenup - living while together in a lifestyle they couldn't create for themselves on their own.

That's not always true, it depends on the jurisdiction. It can protect people with an extraordinary talent that is as yet undeveloped, it can protect assets from an inheritance (not always but sometimes necessary) and it can protect children from a former relationship.

[shikashika]

the funny thing is.. in my experience and group of friends, it's the ones that have the prenups that have the most problems, divorces... Of course, this will be different for everyone.

 

If people want to get prenups, then go for it... it'st just not for me and how I think about marriage.

 

I see a few posts on here where it seems like some people think it's the ones with the least amount of assets that wont' sign a prenup. Maybe some people are gold diggers, but i don't think that's the truth in many equations.

[Excalibur]

It can protect undeveloped and extraordinary talent. However, those types of prenups are generally instigated by the parents of the gifted/talented but undeveloped protege, as they're generally against the marriage, and developing the talent into a marketable and profitable skill is going to take time/energy/resources - of both parents and the newly acquired spouse.

 

Most states protect inheritance by default unless misallocated by the inheriting party into a joint venture. Children from former relationships don't need the prenup to protect theri assets, it is up to the parent to allocate those assets in death.

[RayKay]

Children from former relationships don't need the prenup to protect theri assets, it is up to the parent to allocate those assets in death.

 

Assuming they die before they divorce…..if mom remarries for example, the family home mother always wanted to pass on to the children might end up being sold and split in a divorce, even if she left it in her will to them.

[Excalibur]

if mom remarries for example, the family home mother always wanted to pass on to the children might end up being sold and split in a divorce, even if she left it in her will to them.

 

This is the sort of thing that is handled with lawyers and attorneys, maybe thru prenup and it is often already determined by state laws of residence, prior to marriage.

 

If a person really wanted everything they accrued and had as a parent...prior to remarriage....going to thier children of the first marriage, all that would be liquidated, invested in funds and the market, etc.......and that would never become community property as a result of marriage, fi it were never used in a joint venture of marriage.

[RayKay]

if mom remarries for example, the family home mother always wanted to pass on to the children might end up being sold and split in a divorce, even if she left it in her will to them.

 

This is the sort of thing that is handled with lawyers and attorneys, maybe thru prenup and it is often already determined by state laws of residence, prior to marriage.

 

If a person really wanted everything they accrued and had as a parent...prior to remarriage....going to thier children of the first marriage, all that would be liquidated, invested in funds and the market, etc.......and that would never become community property as a result of marriage, fi it were never used in a joint venture of marriage.

 

Um, yes, that was my point…it needs to be put into a prenup if you want the home to be passed down. Most marriage property laws if the property has been shared would require either one buys out the other or that it is a forced sale of the home to divide the proceeds. My point was that if they wanted the actual HOME to go to the children, a prenup is a good idea to exclude it from property division where the state laws during marriage may require it to be sold and divided amongst the spouses.

 

You stated

 

Children from former relationships don't need the prenup to protect theri assets, it is up to the parent to allocate those assets in death.

 

I was responding to the fact that it does no good to allocate the assets in death if you divorce before death and the property gets divided in divorce. That is what a prenup would enable you to prepare for.

 

Liquidation and investment of proceeds does not satisfy passing down property, when it’s the actual physical property, not the proceeds, one desires to be able to pass down.

[RayKay]

It can protect undeveloped and extraordinary talent. However, those types of prenups are generally instigated by the parents of the gifted/talented but undeveloped protege, as they're generally against the marriage, and developing the talent into a marketable and profitable skill is going to take time/energy/resources - of both parents and the newly acquired spouse.

 

Most states protect inheritance by default unless misallocated by the inheriting party into a joint venture. Children from former relationships don't need the prenup to protect theri assets, it is up to the parent to allocate those assets in death.

 

I don't think DN was talking about the talent of children there and marketing children....rather that of the spouse(s).

 

It does not protect against gifts/inheritances you WANT to pass on at death if they are “shared property” and you divorce before you die for example.

[Excalibur]

My point is that whatever is yours as an individual should never be invested in a joint venture in a subsequent marriage - if you want those assets to be passed to the children you had prior to that marriage.

 

It's simple enough to do, provided that you know you want to do it and require yourself to research and institute the steps to make it happen.

[RayKay]

I agree that you need to ensure that you do not share pre-acquired assets you want to remain separate, but even if you don’t purposely invest it, in some jurisdictions using it as a “shared” asset even without converting it can mean it becomes shareable so you need to educate yourself about law in YOUR area.

 

So, for example, if you live in the home you bought prior to marriage together that you want to pass down to your children from a previous marriage. You may then decide to make a pre-nup that states even though the home is being used as a family home you agree that Spouse B will release their claim on the home (can be for a monetary settlement that accounts for Spouse B’s contribution to maintenance of said home and capital expenses, etc) so that Spouse A can retain the home. Otherwise, the laws in many areas could force them to sell the home and split the proceeds.

[Excalibur]

My thought would be consultation with an attorney in most states would have a person asking the question what is the most guaranteed route that the assets I have now, and any value they have now, be passed to my children and not involved in my next marriage portfolio?

 

Most attorneys I know, in several states would say to sell the house within the capital gains tax period, without ever residing in the house as a newly married couple, Retaining all the assets from the sale in an investment portfolio that is protected from new marriage joint use and is left ot the children in existence in a will, from the time prior to the marriage when the assets are in possession form, vs. liquid asset. Revising the will once the home is sold, etc.

 

But that's really the key, of course if you wish to retain the familial wealth. Leave your assets to your children, unable to be joined in joint venture with thier spouses and unable to be left in inheritance to the spouse - and only to the children they produce.

 

That makes someone with money, only worth marrying if you love them as a person. As a spouse you cannot gain anything except the lifestyle/time spent together.

[teknoise]

I personally think a prenup is a responsible decision to make, and saying it "dooms a marriage to failure" is like saying car insurance dooms you to an accident.

 

Exactly.

 

Some people just aren't marriage material. And those willing to gloss over the statistics on divorce are definitely NOT for marriage.

 

just stay together hoping she might change her mind some day?

 

If she really wanted to marry you, she'll probably bite the bullet and do it.

 

 

With all that in mind though, pre-nups are not written in stone. Like any other contract, it can be taken to court and overturned if its seen to be unfit. Its difficult, but doable.

[RayKay]

Exactly.

 

Some people just aren't marriage material. And those willing to gloss over the statistics on divorce are definitely NOT for marriage.

 

 

 

If she really wanted to marry you, she'll probably bite the bullet and do it.

 

 

With all that in mind though, pre-nups are not written in stone. Like any other contract, it can be taken to court and overturned if its seen to be unfit. Its difficult, but doable.

 

Yes, it is REALLY important that BOTH people have their OWN lawyers, separate lawyers, to go over it.

 

I know here at least, that if one does not have their own lawyer, that in itself is enough to overturn it.

 

Here, a spousal agreement also has to be fair both at the time of making it, and at the time of separation. They will not enforce it for example if it was obviously unfair and one-sided. An example would be if they agreed that spousal support would only be for a couple years until the other was "self sufficient", but they had a child that had severe disabilities and required a lot of care from a parent that limited the primary caregiver's ability to work much or at all, the court may overturn the part about spousal support. Or, if at the time of the writing the spousal agreement, one of them was under duress, coercion or any of those other issues that can overturn an agreement.

[melrich]

With all that in mind though, pre-nups are not written in stone. Like any other contract, it can be taken to court and overturned if its seen to be unfit.

 

That's right. The court's starting point is what is fair and reasonable. Generally the assets you have built up together during a marriage of reasonable duration will be considered joint assets.

[JadedStar]

I'm really glad the issue of a pre nup never came up for me. While i understand the value it would seem weird if a fiancee was more or less saying i love you and want to marry you and be with you for life, but i doubt you will stick by me so please...sign right here.

[RayKay]

I'm really glad the issue of a pre nup never came up for me. While i understand the value it would seem weird if a fiancee was more or less saying i love you and want to marry you and be with you for life, but i doubt you will stick by me so please...sign right here.

 

It might also be a generational/regional thing. I had this discussion with our own melrich recently and in Australia for example prenups are almost worthless after a couple years of marriage, and property laws there are different.

 

Here again, the laws are different for property and prenups have more of a role then they might elsewhere.

 

I guess I just would not be offended by it and don't see it as saying that (but then again, I do have a very different view/experience with marriage and the like than I know many others may or may not!).

 

I also remember seeing my parents divorce 20-something years ago and how the one whom could not afford a lawyer got screwed, even though they were entitled to something more fair given all their non-financial contributions before and during marriage (of course, since then the laws have also changed regarding property, child custody, etc). I just see a prenup as allowing the two, when things are GOOD, to make a more fair agreement rather than it dissolving into bitter fights and a matter of whom can better afford to fight longer....

 

I don't ever WANT or HOPE or PLAN to divorce my partner. But I have also been around long enough to know that not everything in life that happens can fall in line with what we want, hope or plan for (i.e. life is what happens when you are busy making other plans ).

[melrich]

I can definitely see the rationale for pre-nups and I don't think I would be offended if I were ever asked to sign one. But I think the reality is, unless you have reasonably significant assets before the marriage (and your spouse has few if any) they are pretty much redundant.

[Hope_Springs_Eternal]

right on the nail with this one Excalibur..

 

If I remarry I stand to lose. I have liquid and other assets.

 

In the UK pre nups are not legal, and whilst the judge may or may not choose to take one into consideration, he cannot be made to enforce it. Having already made enquiries (as my ex proposed just before xmas and we bought a house, completion was this February although we broke up just before), I had already assigned this house over to the children and I was in effect then borrowing their asset for my lifetime (as long as I survive this gift by 7yrs).

 

Having already married and divorced once, Im very well aware that the loving, cant do enough for you, would fall on his sword for you, guy that you married, is nothing like the two faced, backstabbing, snidy liar that you divorced, so I wasnt taking any chances!

[just M.E.]

"Children from former relationships don't need the prenup to protect their assets, it is up to the parent to allocate those assets in death. "

 

I found this to be absolutely untrue for my case and state, and was why I insisted upon a post-nup when I found this out. To protect the assets I wanted passed to my daughter, I could not guarantee that my husband would honor my wills and wishes.

 

In my case he left me as he was upset I would not leave 100% of my property to him and was angry I wanted to leave the family home that I owned prior to marriage to my daughter as I promised her growing up. I had provided a generous life insurance policy for him but was concerned he would "lose" the home if he inherited it, either through mismanagement of his funds or a remarriage and divorce.

 

I think pre-nups are very valid in todays world and would never be insulted if someone asks me for one. It takes all the questions about the future away which includes inheritance. I think it protects both parties if done properly.

[Excalibur]

found this to be absolutely untrue for my case and state, and was why I insisted upon a post-nup when I found this out. To protect the assets I wanted passed to my daughter, I could not guarantee that my husband would honor my wills and wishes. Of course you can't guarantee someone will follow your requests and mandates after your death...which is why you don't have assets that become joint prooperty you want passed only to your children.

 

In my case he left me as he was upset I would not leave 100% of my property to him and was angry I wanted to leave the family home that I owned prior to marriage to my daughter as I promised her growing up. I had provided a generous life insurance policy for him but was concerned he would "lose" the home if he inherited it, either through mismanagement of his funds or a remarriage and divorce.

 

But I suspect it's quite possible he'd have never married you at all, had you insisted that the house remain uninhabited by you as a couple to remain completely within your personal vs. joint jursidiction. Sold upon tax gains becoming available, and that being turned into an investment portfolio as a result of it never becoming "joint" in ownershp - that would be inherited by your daughter, without him having any rights or say. If you'd have insisted on finishing up the first marriage and those assets for your children, prior to this involvement, from the sound of it when he figured he wouldn't be living in ahouse better than he could afford on his own, and he wouldn't be getting any part of an assets package he never invested in - he'd have ended the relationship pre-marriage anyway.