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We've had this discussion before. The mister and I, that is. And we initially thought it a good idea to seriously consider a prenup given where each of us are in our lives. However, after some research, I've learned that the prenup is not necessary if you only want to prevent the other party from having any interest or claiming a community property interest in your separate property. Now, separate property is any property acquired before (and after) the marriage. community property is all property acquired after during the marriage. So, we've decided to say NO to the prenup. In California there are a lot of requirements to writing an enforceable prenup. The cost and time it would take to have something like that done was just not worth that piece of paper. I've decided to create a trust for the benefit of my children and put all of my separate property into the trust. I have to remember not to comingle any community property (including my salary) with the trust or the separate property. So, the issue with my house and whether or not I should sale it or keep it post marriage is likely going to be sale BEFORE the marriage. The money will go into the trust for my kids and will be used to maintain the rest of the pre-marital property (i.e. stocks, IRA, etc.).
I am not worried about this too much anymore. In the beginning I was a little forceful on this topic given the issues with my starter marriage and that divorce. I didn't want to put my kids through losing everything like that again. However, now, I'm more comfortable with the idea of not signing the prenup and going with my heart and the realization that WE'RE NOT GETTING DIVORCED!!! This marriage is going to last beyond our deaths. He and I are met to be together. And God forbide, if for whatever reason things change (because people do change) and it is a change he can't deal with (I know I can deal with most changes) and we're headed to divorce court. As heart broken as I'll be, I know that I'll be okay with us splitting the community property 50/50 if I know my kids' rights are being protected by the trust.
So, that was pretty long. And I hope it was just a bunch of blah blah blah for you bees. What do you all think about a prenup? Have you discussed this with your SO?
we_want_prenup.jpg (113.5 KB, 59 downloads) 2 years old 
Also I would just note for everyone that the law regarding marital/community/individual property differs from state to state.
I hate the idea, honestly.
Anyone I'm marrying better trust me fully and not think that there would ever be a need for a prenup.
'Nuff said.
FI and I don't have any assets to have a prenup over, but if we did, I would definitely consider one. Yes I love FI and want to be with him forever, etc. etc. etc. but things happen and you have to protect yourself.
@chicagowife - Yes, it differs with each state. California is a community property state and public policy is always in favor of marriage in California, so a prenup is not something the courts really like, so they make it difficult to actually have one that is enforceable. If you're in a community property state, everything acquired during the marriage is split 50/50. If you're in a non-community property state, the court generally makes and equitable split of all the property (acquired during or before the marriage). REMEMBER TO GET LEGAL ADVICE FROM AN ATTORNEY LICENSED IN YOUR STATE BEFORE SIGNING A PRENUP. DON'T RELY ON THE INTERNET OR POST ON WEDDINGBEE.
I think we will probably do a prenup for several reasons. First, generally, I think it is a good idea to sit down and decide what is fair when you are speaking to someone you still love. Divorce is so emotional it seems people lose their heads and often act irrational.
Also, for us specifically, because I am an independent contractor with my business, I have some liability issues that my FI does not have. We are going to look into how a prenup may help protect our joint assets from my personal liability.
Mr. Cosmo and I are not doing a prenup. We have discussed it, considered the options, and in the end decided that it was not something that we wanted to do.
Caveat: While the above-posted information regarding pre- and post-marital (or community) property may be applicable for the state of California, I do want to emphasize that every state has different laws governing marriages (both actual and common law)/divorces/community property, etc. :)
i think getting a prenup is mature and smart, in certain situations. for us it just isn't necessary, neither of us has anything to protect!! if we did we would have probably discussed it.
i don't think it necessarily has anything to do with trust. you never know what might happen in a relationship and how messy things could get, regardless of how much love was there in the beginning!
@hotchildinthecity - I totally agree with you. We just found a way to protect my premarital assets without the need of a prenup. It just wasn't really going to do us any good. It wasn't worth the cost. However, Mister was willing to sign one.
We never considered it because divorce isn't an option to us.
Like Hotchildinthecity, we don't have any assets either LOL! I considered a prenup because he is going back to school and I don't want anything to do with the student loans he is about to take out. But I am pretty sure this would have freaked him out to the point of possibly calling off the wedding so I decided not to pursue it. He already feels that I am not "fully committed" since I am keeping my name, imagine if I was keeping my money too!
I would have no issues signing one and my SO would have no issues signing one either.
I find them completely necessarily in some cases...what if one person is worth millions of dollars and the other, maybe 40K? I'd get a prenup JUST in case...just in case. If I was worth pennies and my husband was a millionaire, I'd sign it because I'd be in the mindset that if we got divorced, I don't want to "win" with his money. I don't need his money. If i was the millionaire, I'd feel foolish for not having one and then my ex-husband benefiting from us splitting up by him taking half my money. And family businesses---some things need to be completely separate from your marriage. The divorce rate IS high...i just don't want to look back someday and go "hindsight is 20/20...boy i made a BIG mistake" ya know? You never know. I'm not immune enough to think i'm invincible.
What we earn separately stays separate unless someone decides to combine. But what you earn jointly is split jointly.
I feel with my heart and I think with my ever-so-logical head. My SO doesn't care--his attitude is, "cool, we'll never need it and if it'll make you/your parents feel better, I'm fine with it". Not even offended.
The only people i've ever met in real life who would be offended are the ones who are worth less than their SO's. I think they're worried they'll be taken advantage of? I'm not sure. I know my mom was initially offended when she married my dad (dad was rich, mom was dirt poor) and now that she's come so far with my dad, she understands why he presented one to her.
Plus prenups can be so much more than money.
um YEAH. We both have private businesses. M has an LLC and I am a sole proprietor and next year will become an LLC. I definitely say YES to prenups because I don't feel that I am entitled to any of his assets and I don't feel that he is entitled to any of mine, thus far especially business-wise. My business is just beginning and is thriving generally, his is doing well as well. However we are both broke so it would only apply to our businesses. I wouldn't mind a prenup where after a number of years we are entitled to x percent of the earnings. Now I also wouldn't mind a prenup where if we made a certain amount of money during our years together the spouse would be entitled to that. Even if he never sets foot in my business or helps with anything, every day there is still taking away from our time together and things I feel that I should do as a wife or vice versa, for that I think each should be entitled to a certain percentage, I suppose it's something like earning ability or something like that. But I think it's in the best interest of us both and I know he is quite surprised that I believe in prenups etc, but coming from a divorced home and being in several broken engagements, this stuff hits close to home.
We won’t have one because neither of our financial positions requires one – but if our situations were different, I definitely would consider one (signing one, or asking FH to sign one).
I don’t think looking into or being asked to sign a prenup has anything to do with how much you love or trust someone. I know a lot of people who say if you trust your partner, you won’t ask them to sign a prenup…but (devil’s advocate) if YOU trust your partner completely, why wouldn’t you sign one?
If you never get divorced, then it’s nothing more than another piece of paper in the safe (or wherever you keep important papers). I dunno, it wouldn’t be a big deal to me at all to be asked to sign a prenup.
@ejs4y8 - I don't think it is only the SO coming into the marrige with nothing that is offended. I have a very good friend, she's a doctor, who was engaged to a lawyer, until he demanded a prenup. She is so against them because she believes they prepare for the end of the marriage. She was offended that he thought she'd take him to the cleaners if they divorced. I tried to explain that it would protect her as well. She didn't buy it. She was offended he would ask her, a doctor with her own money and other assets (more than him, by the way) to sign a prenup. needless to say, they could never agree on the prenup and they called the engagement off. This happened very recently and I think they'll likely work it out because they both miss each other like crazy and still talk like every day. But, it did cause a huge problem in their relationship. She was really upset and offended that he would ask a woman like her for a prenup.
@91011: While I really think that this is a great topic for these boards and an important consideration to anyone considering marriage, I do think you are leaning a little too closely to actually giving legal advice, i.e., when you mention the public public policy favoring marriage and the courts generally disliking prenuptial agreements (unless you are an attorney licensed in California). It is really great to know what you have planned to do and what you found could work for your situation, but you might want to leave the legal stuff out.
My mom and stepdad have a prenup. They got one on the advice of my mom's financial advisor, and my mom they did it because, why not? We aren't going to use it. If FI and I had significant individual assets (which we don't) we might have done this with the same attitude - that piece of paper has no influence on our commitment, so we might as well forget about it now that it's done with, because we will never have to use it. But what does it hurt to get it?
I hope this doesn't come across judgmental, but what came to mind when I read your situation is -- the difference between a prenup and what you are doing is with a trust, it isn't over and done with. While a prenup can be done as "insurance" and put out of your mind, a trust involves more management and thus I feel like it could be more present on your mind and in your marriage, and that kind of "mine and yours" rather than "ours" thinking can be divisive. I hope that makes sense.
It sounds like you are really pleased with how you worked this out, and I'm glad. I know it has to be stressful to come into a marriage with these other things you need to manage with thoughtfulness. It sounds like you have been very thoughtful and realistic, and that's great! But my heart did sink a little bit when you talked about if you two change and he can't accept it, and you head to divorce court. As you know from being married before, people DO change, but marriage is about accepting each other no matter what and committing to work through anything, even if its hard, even if you don't want to. I know it must be hard to trust 100% again after a divorce, but from what loved ones have told me, if you don't trust 100% and put the past behind you, it will be hard for your marriage to succeed. Have you considered counseling, either premarital or after you get married? I think everyone can benefit from counseling - I know FI and I have.
We don't have anything worth fighting over! But we wouldn't do it, even if we did have stuff. Our commitment is forever, and signing papers to save us if we divorce seems unreasonable and saying that there is a possibility we won't last. If for some wild reason, we didn't last, we would just split stuff.
I will pretty much refuse to get a divorce. My parents have been divorced 4 times between all their significant others. I've seen these situations first hand as a child, and now as an adult. It's not pretty, especially when there is money involved. My dad has money and I will at some point be getting a good chunk of it. I know that BF would never do anything to take it away as money is not important to him. However, I know that my dad will require me to get a prenup because of the inheritance. I'm pretty sure BF is okay with this as he is watching my dad go through a divorce right now, (his parents are still together.) I know that he understands the point and won't get offended by us having one.
I don't want one but we do have some assets.
My issue is that I don't plan on divorcing and that's that.
He doesn't either.
He also knows that in my prior divorce (heaven forbid) I certainly didn't ask for more than a fair share and even settled for less just to have peace.
I am quite trustworthy and he knows it.
@91101, that sucks for your friend, and you're right. Our friends would actively ask me if we needed a prenup (it's no big secret my parents have done well) and always talked about how they'd be offended if they were marrying into a family that required a prenup because they said it implied they were like, a gold digger or something by not signing it. I can see how it could be taken offensively...I guess I just take it like some legal thing that hopefully you never need! Hopefully they work it out--lawyers are typically the biggest advocates of prenups it seems.
I guess you could look at it this way: if you're going to let money and assets get in your way now (ie it's a dealbreaker), what does that say for later? I know if my SO would have freaked out about a prenup, that could have caused issues. Not on his end, but on my end...i'm not comfortable marrying a man who won't relinquish what's not his up front. If that makes any sense at all....? He'd be offended I asked for one and I'd be offended he doesn't want one...like it's saying he IS gold digging. My brain's a little fried; i know that's coming out weird.
Hopefully it's not always a sore spot for your friend; i could see how it could always be a touchy subject considering it was enough to call off the engagement =(
@MissCosmopolitan, I am a licensed California attorney and I am not giving legal advice. I specifically said for all of the ladies to seek out an attorney and to NOT rely on weddingbee post when deciding on a prenup or signing one. I am only speaking on what helped me decide NOT to sign a prenup. But if it makes you feel better, here is my DISCLAIMER. Apologies if I offended anyone by providing information I used when deciding on NOT signing a prenup.
DISCLAIMER: ANYTHING 91011Bride posts here on weddingbee.com is NOT legal advice and is not intended to be legal advice. Please seek out the advice of an attorney licensed in your state.
@ejs: If lawyers seem to typically be the biggest advocates of prenups, maybe it is because the lawyers are also on the *front lines* of divorces. :P
@MissCosmopolitan, no i agree! I think seeing the negative side opens your eyes to unheard of possibilities...you see these people crying in your office about how they never thought it'd happen to them....or it makes you really skeptical, right? One or the other! There's a lot of people who say they'll never get divorced/not an option and it still happens sadly--i"m sure most of those people going to divorce court are like that. Not to discredit anyone who says that themselves...just saying lots of people who say that and then have to eat their words.
I second crebre80. I currently don't have any assets but he does - and I am not interested in them. Including student loans. Especially since my loans will top out pretty steeply in the next decade.
We both come from situations where we see things not quite working out. I don't feel a prenup dooms my relationship - but shows that I'm earnestly not interested in someone else's money.
i apologize for sounding insensitive, but i just think that saying "divorce is not an option" is all fine and good but you just NEVER know that will happen. you cannot possibly know someone 100%. it just doesn't happen. i think it's important to be able to talk about the possibility of divorce with your SO. we have discussed how we are 100% committed to working out our problems before considering drastic measures, but i think that's different than saying divorce isn't an option under any circumstances.
part of the reason i feel this way is that my sister got married young, loved her fi/husband, trusted him, never lived with him. during their marriage she was abused emotionally and bordeline physically (never touched her but she feared he would). this man refused counseling and she ended up divorcing. she never ever thought she would consider divorce, but you have to do what you have to do.
@daniellemybelle - divorce isn't an option for me. I guess I wasn't clear. I do love him and trust him 100%; not sure why you though otherwise, but it was not my intent to give the hive that impression. My point about people changing is that it happens and the fact that the divorce rate is over 50% is proof of this. I'm a realist. Sorry, but, I know that I can only control myself. I can't force him not to divorce me, if that what he decides he wants in 20 years. Honestly, I really was trying to focus on the idea of a prenup and not get folks to thinking I don't love Mister or trust Mister 100%. If I didn't; we wouldn't be getting married. So, that's enough on that.
And yes, of course we've done premarital counseling. It makes me laugh that you would think otherwise. I'm not a young bee and life has taught me a thing or two about people. With age comes wisdom. I have enough grey hairs on my head ot prove that (well, you could see them if I wasn't so insistent on hiding them with temp. hair colors). We actually did couple's counseling before we decided to get married and that is how we've been able to work out these issues and why I'm not pushing for the prenup. I was totally pushing in the beginning. I'm a strong believer that premarital counseling is a requirement for all engaged couples (never married and us encore brides).
And as for the trust, it was the best option for us. It might require some management during the marriage, but Mister is okay with that. And, he looks at it as protection for my children. The only funds going into the trust will be the stocks and ira I currently have for my children and the funds from the sale of the house. Managing that will not take away from the family. Everyone's situation is different. This works for our situation. Mister is completely on board with this plan. He was on board with signing the prenup. He knows me and knows what I've been through and knows my heart. It's not about what is mine is mine and what is yours is yours. It's about reality and life and protecting our children's interest. he knows this and respects it and actually loves me more because of it. He calls me his little logical lover. I'm a romantic at heart; but life experience has taught me to think logically and make logical decisions before leaping with my heart. My mother used to tell me when I was in my 20's, "girl, keep living. just keep living." I was such a romantic and just didn't think there was any other way than my way. I kept living. And you know what, I learned that just because something works for me, doesn't mean it will work for others or that what someone else is doing is "werid" or "wrong" or requires some type of counseling or implies there isn't "100% trust." That's my 2 cents. 
@ejs: I am an encore. I was married the first time for eight years. (I married young - he was older and an officer in the Army.) The reason I stayed married for so long was because I felt I had a moral obligation to uphold my vows - for better or worse, 'til death do us part. While our divorce was uncontested (uncontested by the fact that I kept very little (I refused to fight about *things*) and there were no children to consider), I sacrificed a lot (property-wise and investment-wise) for the expediency of the divorce.
I was surprised that Mr. Cosmo was not considering a prenup (I was the one that actually brought up the topic). Even though we're both attorneys, we practice in completely different specialties (me in civil litigation and him in intellectual property) and while I make a comfortable salary, he makes significantly more. Even if he were to change his mind before we get married and want a prenup, I would sign. Without reservation.
My FI discussed a pre-nup and I told him that I would be more than willing to sign one, provided it protected BOTH of us and not just him. Our situation may be a little different from others in that we both currently have successful careers and I will be leaving mine in order to become a full-time housewife (I agreed to try it out for 6 months to see if I like it). Because I will be taking the greater financial risk in removing myself from the job market, I wanted to make sure that any prenuptial agreement contained a provision which would ensure that I would be taken care of until I was able to find a position comparable to where I am currently in my career in the case of a divorce. My FI and I don't believe in divorce except in the case of physical abuse or infidelity. We decided not to do a pre-nup and each have no problems giving the other some of our assets if we are responsible for the breakdown of our marriage due to the reasons stated above...but those are the only two reasons. There will be no "irreconcilable differences" other than abuse or cheating.
@ottawa: i agree completely with you. divorce is not an option for me on December 4, 2009. I have no idea how i'd feel December 4, 2038 though. I honestly believe M is my soul mate. I have waited for him, looked for him, and been happily in love with him since before I physically met him. However things happen, people change. I am not naive (i don't believe that anyone who doesn't believe this is), but i have seen my parents go through divorces, my friends break up with people they thought were meant for them, and myself go through failed engagements. Marriage is meant to be forever and I think the prenup may actually encourage the couple to stick it out, after all, I wouldn't want to give M any predetermined monetary amount, ESPECIALLY if I was angry with him, we'd have to go to counseling or something because I'm sure I wouldn't be willing to leave and just give him whatever the prenup says.. LOL!! I'd rather stay married :D... besides we have great communication skills and i just think people would think this was an extension of our communication skills and think hey they have really thought about this and are not going blindly into marriage.
@crebre - that's an interesting way to look at it, that a pre-nup would encourage you to work out your problems... i like it! i have never thought of it that way before :)
No, not necessary. I don't have assets that need protecting aside from the one my jeans are covering. Seriously...I have maybe $25 in the bank, and a really old car. That's it. I'm in it to win it, no security blankets or consolation prizes. I guess I don't see the point when divorces are incredibly damaging, emotionally and financially, regardless of the prenup. At this point in my life I wouldn't be saving myself any suffering by getting one.
I also think a lot of people who get married get sucked into this notion that someone *has* to stay with you even if you're needy/controlling/depressed/abusive/generally unhappy about everything. I have seen A LOT of failed marriages because of the partners doesn't continue to have the "dating" mindset - and starts to take things for granted. Perhaps for me, a prenup is that reminder that I need to uphold my half of the bargain.
Or maybe it's the collective experience of 10 years with other long term relationships.
Regardless, divorce can be both expensive and retalitory. As an attorney, it was natural for the prenup discussion to come about.
@crebre - I know someone staying married because of a prenup. So, yes, a prenup does in some situations keep the marriage together. LOL!!!
@miss cosmo, I very much see what you mean. I make more than my SO, too (and likely always will as my type of engineering pays better than his and i want to do management which doubles what he'd make) but that doesn';t even concern me as much as the assets. As in, my parents assets...not even mine. It's hard to say how I'd feel about my own. I don't have lots of "things" at age 23. But I keep looking down the road thinking "okay, when i'm 50...what will I likely have in my possession?" and my mind immediately goes to the things my *parents* worked hard to secure for my future and i want to ensure that if anything, my children get those, not a husband who, while he has the best of intentions now and is wonderful (and i like to think not that kind of a guy) from taking it from under their noses. It's not *my* assets, it's my parents...I feel like it's their stuff i'm protecting, not even mine! If that makes sense.
I agree with Ottawa and Crebre. Does anyone really go into a marriage thinking, "yep, divorce is an option!" The whole point of marriage is that you are bound, legally and for some spiritually, you are not supposed to break that. but so many marriages end in divorce that for some people (people with property, definitely not me right now!) might want a prenup. and if "divorce is not an option" then you will never have to use the prenup you made!
We actually decided on the same thing for similar reasons... except just about all of our separate property is liabilities! Yay student loans! If we divorce before we pay them off, we each get to keep our own debt. ;) Everything else will be joint; we're happy with the default community property rules in case one of us ever stays home with children.
@mmmtacos - I totally agree with your statement. "Regardless, divorce can be both expensive and retalitory. As an attorney, it was natural for the prenup discussion to come about." It was natural as deciding on my e-ring to discuss the prenup with Mister. I wasn't surprised at his reaction either. I knew he'd agree to sign it and knew he'd completely understand my reasoning behind one. Granted... one of our first conversations was about marriage and prenups, so he had an idea that I'd want a prenup.
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