Prenups for Women -What every modern woman should know

By Dante Nicolello

Many years ago, on a random date, I was told by a woman, “Just so you know- if we ever get married, we’re getting a prenup.” She had a great job at a large pharmaceutical company where I believe she did quite well. She told me, “…there was no way in hell any guy who leaves me deserves any portion of my future earnings.” She was ahead of her time, but she was right! She got to where she was on her own efforts and didn’t feel she needed to share her earnings if her marriage doesn’t work out.

More and more women are getting prenups because they feel it offers extra protection before they take the plunge. I am sure you have heard about the rich and famous wanting to protect their family fortune, protect their children from a prior marriage and protect their future income by hiring a team of lawyers to create their prenups.

Now, many more people who are not rich and famous are getting prenups, especially women. Women have made tremendous progress in the work force, thereby generating more income and building up assets. A large percentage of successful women have made their career being self-employed. They are highly educated, have strong careers at large companies, run their own businesses, and many have put off marriage until later in life. Now more women own real estate, have 401(k) retirement accounts and hold advanced degrees, because of their hard work. The thought of someone taking part of what they worked so hard for, or making them liable for future support obligations, makes successful women think twice about getting married.

Prenups have been around for a long time. A prenup is a contract both potential spouses agree upon prior to marriage. The contract becomes effective upon marriage. Once married, the prenup can be changed as long as both spouses agree in writing. They are agreeing to override default rules in the law. These rules were designed to protect a spouse who has less power and earning potential from financial disaster if there is a divorce. These protections are somewhat antiquated for modern times when, in many marriages, both spouses come into the marriage with assets, degrees, solid career paths and income. Many times, in a divorce, these protections can be used as a sword instead of a shield. A prenup allows both parties to agree to a plan customized to their current situation. This plan will provide sober guidance in the unfortunate event of a divorce or death.

Nobody who buys auto insurance or who wears their seatbelt intends to crash. A prenup works in much the same way, and will provide guidance for dealing with financial questions in the event of a divorce or death.

Women who have invested time in an education, in their careers, in their businesses, in their homes, in their children and in their families, are getting prenups because they feel having extra protection and certainty is necessary just in case something bad happens.

In a prenup, a woman can spell out who owns what. What happens if she inherits money? What happens if her business grows like crazy? Will she have to sell it and split the proceeds from the sale or will she be able to keep her business? Will she owe her husband a percentage of the future value of her advanced degree? What property is marital, and what property is separate? Does she get the house? Who gets the dog? Do her children from a previous marriage get anything in the event of her death, or does it all go to the current husband?

These answers can be addressed in a prenup, which is a custom document that is usually created by a lawyer. This lawyer will interview the client and find out everything of concern to her. The real value here is that the lawyer will advise her on what he thinks is right for her situation. Anybody can buy a contract online cheaply, but getting advice from a professional who knows the law, is what is of real value. Once the lawyer and the client agree on everything, he will draft the contract, go over it with the client and explain how it works. The next step is for the future husband to sign off on the document. He will probably retain his own lawyer who will make small changes. This may go back and forth until the document is solid and agreed to by both parties. The document is then executed and notarized. It becomes binding upon marriage. Hopefully it will never need to be used, just like auto insurance, but it is good to know it is there.

Interested in learning more about a prenup?

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About the Author

Dante A. Nicolello is a named partner at Lau & Nicolello, LLC. He holds a JD from New York Law School and is licensed to practice law in both New York and New Jersey.