The laws and regulations that govern our life are staggeringly complex. No one, not even an attorney, can know them all. But, like it or not, your marriage is subject to a myriad of rules and restrictions imposed upon it by the jurisdiction(s) in which you live, beginning with whether you “qualify” to be legally married and culminating with what happens to your property when you die. That’s the bad news. The good news is that, for the most part, you’re able to write your own rules to fit your unique situation IF you do it right.
Every business partnership worth its salt has an operating agreement that dictates the partners’ rights and obligations and what happens if a partner leaves or the partnership is dissolved. It’s a good idea to plan for such contingencies when everyone is getting along. The same applies to your remarriage. The last thing you want is for you, your spouse, and/or your heirs to be stuck in a quagmire of legal wrangling where those who benefit most are the lawyers. The time to hammer out thorny legal, financial, and estate issues is when you’re clear-headed and can think both generously and realistically.
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A marriage operating agreement is called a prenuptial agreement if you enter into it before you get married, a postnuptial agreement if you enter into it after you get married. I’ll use the term “prenup” to apply to both. To some, “prenup” is the equivalent of a four-letter word and to have one is the equivalent of admitting that the marriage won’t last. Well, guess what?
Your marriage won’t last. It will end, if not by divorce, then by death.
You already have a prenuptial agreement—the divorce laws provided to you courtesy of the state in which you live.
You can accept the default one-size-fits-all prenup the government provides, or you can craft one that is appropriate to your circumstances. If you accept that your marriage will one day end and that you already have a prenuptial agreement, then it’s a heckuva lot easier to roll up your sleeves, make decisions, and modify the state’s prenup to fit your circumstances.
Prenups accomplish more than defining what happens if you get a divorce. They are also super-duper handy when you want to:
1. Define property rights for purposes of estate planning so you can protect your children's inheritance.
2. Protect your assets from your partner’s creditors.
3. Protect business partners and ensure the continuity of your business.
4. Clarify how you meet financial obligations from a previous marriage such as child support and alimony.
5. Compensate a spouse who is giving up a career to stay at home.
6. And more.
Grown-ups take responsibility for handling their financial and legal matters and don’t leave such important decisions up to the government. To make intelligent decisions you need to know and fully understand the impact of relevant laws on you, your finances, and your children (if any). Every state has different laws on marriage and inheritance. Investing in the help of a competent professional is worth every penny. Only a competent professional can give you that help. Having said that . . .
By all means, do your research on the internet (but don’t assume it’s 100% accurate) as a way of identifying those things you need to think about and discuss. BUT, don’t do your own legal work. A generic fill-in-the-blank one-size-fits-all prenup can’t possibly fit your situation and you end up doing more harm than good. You wouldn’t fill your own tooth or set your own broken arm. Don’t do your own legal work.
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A marriage is a partnership and all partnerships run best when everyone agrees upon and knows the rules.