February 10, 2021
Be Mine: Perspectives on the Benefits of Pre-Marital Agreements from an Attorney & Client
Please read important disclosures HERE.
February 10, 2021
Please read important disclosures HERE.
With Valentine’s Day approaching, the focus turns to candlelight dinners, bouquets of red roses and boxes of chocolates. Romance is in the air and what could be more romantic than – a pre-marital agreement (this is not a typo). Initial reactions may view a pre-marital agreement as the opposite of romance. It lays out specific plans for the end of a relationship, coldly dividing up assets like a liquidation sale. Yet, let’s attempt to view a pre-marital agreement through a rosier lens. Establishing a pre-marital agreement involves discussing an approach to finances and a disclosure of the full financial picture each person brings to marriage. The process could establish healthy communication behaviors that could carry forward into marriage. While money does not guarantee happiness, my sense is that couples who have ongoing conversations about their finances and how those assets support their dreams tend to have a strong financial and emotional foundation.
I spoke to a client (who I’ll call Jane to keep her name private) and family law attorney, Marisa San Filippo for their perspectives on the benefits of pre-marital agreements. Marisa is a Partner and Certified Family Law Specialist1 with FLICKER, KERIN, KRUGER & BISSADA LLP with offices in Silicon Valley and the East Bay of Northern California. Here are key takeaways from my conversations with them.
THE CLIENT PERSPECTIVE
Jane, why did you want a pre-marital agreement?
“There was quite a big gap in amount between my assets and my husband’s assets. I wanted to make sure that I could protect my assets as much as possible in case we were to divorce. This was especially important since my assets are used (or I would like to use them) to support my parents and my brother’s family in addition to mine.”
How did you bring up the topic with John? How did it feel?
“It was weird for me to bring it up since I had this preconceived notion that a prenup was for super rich people and celebrities. It felt weird to talk about a divorce scenario at the same time you are planning a wedding and life together. But when I shared that exactly, including my fears and how weird it felt, my husband was open to it. He stated, “Of course. I would do it if I were in your shoes.”
Looking back, how do you feel about the process? Was it worth it?
“It took longer than I thought honestly. Each of us had to find a lawyer whose fee was reasonable. Since I was the one who was drafting it, it took me longer, talking it out with my husband and my lawyer and making several revisions, etc. Now it’s finished and it gives us both peace of mind. I don’t ever have to worry about it.”
What’s your advice to others on best practices for having these types of conversations and crafting their pre-marital agreements?
“Even without a prenup, I think it is best to talk about each other’s finances (savings, stocks, expenses, debt, etc.) and philosophies affecting finances (use a joint bank account? private vs. public school for kids? The timing of house purchase at what price range? do we talk to each other when making big purchases?). If you do that, a prenup becomes really easy since you have talked about most of the major items already. Even after completing the prenup, I think it is good to do quarterly check-ins to make sure your finances are in a good place relative to the things you want to do together.”
THE ATTORNEY PERSPECTIVE
Marisa, what are the benefits of a premarital agreement?
“One of the benefits is the conversation that it creates between two people, because you are talking about financial issues that might not otherwise be discussed if you were to marry without discussing finances. It is a big benefit because I have the couple ask each other a lot of questions. I will have my clients discuss items such as how they want to handle joint expenses or what to do with their assets or what do you want to do when you buy a house. The conversation that it creates is helpful.”
What are other benefits of a premarital agreement?
“It creates more certainty for people. A couple will be able to know “if we buy a house, this is what we’re planning to do. This is how we’re planning to hold title.” It also gives options. If one party wants to purchase a house as separate property, the couple comes to an agreement to do that. Couples speak about how to invest money going forward, what expenses are to be paid from the joint account. These higher levels of certainty can be helpful. It can also be helpful to do the financial disclosures with the identification of each party’s current assets and exchanging account statements for purposes of tracking these separate property assets down the road.”
Who should consider a pre-marital agreement before marriage?
“There are a couple of categories:
The California Family Code really is a default premarital agreement. If you want to agree to something else, if you do not want to have community property2 or prefer to limit the creation of community property, you may do that with a premarital agreement. Many do not realize that California law is protective of separate property3 if you understand how to keep items separate with the records you must keep. Sometimes, clients realize they do not actually need a premarital agreement. They simply need the advice on how to keep their assets separate.”
If separate assets remain separate, what is your advice to avoid commingling separate and community property? There may be one spouse with more financial means than the other and you may not want to limit your lifestyle in pursuit of keeping assets separate.
“My advice to people is always to be intentional. Start a joint account for joint expenses, but do not put all your separate money in it. Fund it monthly as necessary with separate money. Yet, be sure to have a conversation first about this funding process with separate assets. If the agreement’s going to be, “Okay, we want to live at a certain lifestyle, my separate property funds that lifestyle,” you need to have a conversation about what that looks like. Are you still expecting your spouse to work? Are you still working? How does that figure in? If the marital standard of living is part of what we review when setting spousal support, then are we putting limitations in the agreement so that all separate spending doesn’t necessarily impact the spousal support picture. These are topics that need discussion.”
What is your advice to couples on how to start the conversations on premarital agreements? It seems like it may be awkward.
“Yes, it can be awkward. My advice is to start the conversation early. The conversation might start directly with, “Let’s have some conversations about our finances. I am considering getting a premarital agreement.” Premarital agreements can also be done in mediation, which can be a nice way to do them. You each have your own consulting attorneys and you work with a mediator jointly. I think nowadays, more and more people expect them. I have young clients who are CEOs of companies or they’re running private equity firms and they’re 32. It’s becoming more and more prevalent as people are getting married later, they’re getting married with a lot more wealth. Having the conversation early is important so that you’re not sneaking up on somebody.”
I’m asking you to generalize but do you believe completing the pre-marital agreement process may lead to fewer divorces?
“I do. It makes for stronger relationships because people are talking about goals, plans and ideas in a way that a lot of people do not when they get married. There’s much more disclosure upfront including the assets that the other person has because a schedule is attached to the agreement, which I think really helps.”
In closing, both my client, Jane, and family law attorney, Marisa San Filippo, highlighted several ways a pre-marital agreement may strengthen a marriage. The process begins the conversation around finances and how to manage them. There is a full disclosure of the financial picture. Couples can set some terms by their rules versus the default ones set by the state. Having financial conversions is critical when couples marry and periodically throughout marriage to ensure the couple’s goals and priorities are aligned. While the pre-marital agreement process may not be romantic, Valentine’s Day is only one day in the year. If the goal is ‘till death do us part,’ then the premarital agreement process may begin a lifelong, healthy practice of communication.
1 The State Bar of California Board of Legal Specialization
2 ‘Property and Debt in a Divorce or Legal Separation’, https://www.courts.ca.gov/1039.htm. Community property is everything that spouses or domestic partners own together. It includes:
3 ‘Property and Debt in a Divorce or Legal Separation’, https://www.courts.ca.gov/1039.htm. Separate property is defined as: