One of the issues most likely to adversely affect your wealth is a simple statistic: nearly 50 percent of marriages end in divorce. With the summer wedding season upon us it’s time for a simple discussion of prenuptial agreements and why they must be part of every physician’s risk-management plan. Here are some of your most basic questions, answered:
Q: What is a prenuptial agreement or “Pre-nup”?
A: It is a legal agreement entered into between two people before they are married that that can cover a wide variety of issues centered on property rights and assets. In addition to the traditional role that most people think of (dictating the division and distribution of a variety of physical assets and setting terms for any required spousal maintenance at divorce), pre-nups can also cover death, incapacity, estate planning, and a variety of other legal issues including the division and attribution of income earned during marriage.
Q: Can I do it myself or with an online “kit”?
A: You can but you certainly should not. The laws regarding the requirements and enforceability of prenuptial agreements are specific, unforgiving, and vary widely from state to state. Further, some states actually require that each party has their own lawyer in place that they have reviewed the agreement with.
Q: What has to be in a pre-nup?
A. While the laws vary from state to state, these are the most common requirements:
1. Full and accurate disclosure of all assets by each party. Failure to disclose any assets can not only jeopardize the applicability of the pre-nup to that one asset, it can invalidate the entire agreement in the worst cases;
2. The agreement is done well in advance of the marriage and is free of any duress or eleventh-hour presentation that could have made someone feel forced to sign it under the threat of calling off the wedding;
3. Both parties have counsel or at least had an opportunity to consult with counsel and were explicitly advised to do so.
Q: I’ve been married and divorced before; do I need a pre-nup for a later marriage?
A. Absolutely. The odds of a second marriage ending in divorce are over 60 percent and climb to 70 percent in a third marriage. Moreover you will have less time to earn, save, and rebuild wealth than you did the first time around in a substantially more demanding medical business climate. I routinely talk to doctors who have had years of high income and who amassed significant wealth but didn’t investigate protecting it until they had already lost half or more of their hard earned net worth to a divorce. When I ask if they had a pre-nup the response nearly always the same, in fact alarmingly identical, “We didn’t have anything when we got married, we ended up successful and never thought it would happen to us…”
As an asset-protection attorney I warn doctors there are several things I don’t protect them from. These include not paying taxes or other criminal acts and the person they are already married to, one of the life events that routinely costs people more than 50 percent of their net worth. I also routinely raise this issue with single doctors of both sexes and advise them equally to get a pre-nup and to introduce the idea today if they are considering marriage.
I’ve seen too many people that went against the advice of their counsel lose or risk half a life-time of work because they were afraid or unwilling to have a tough, serious conversation about the possibility of a divorce when they could still do something about it. I’ve also seen a substantial amount of emotional blackmail at play, most commonly the other party saying that it’s insulting, it’s not about money and the most ridiculous, “If you really loved me you wouldn’t ask me to sign this.” My response? If it is in fact not about money, you can sign it, this proves it. While these are certainly not the words of a relationship expert I need you to get your head around this: No one who you actually should marry will let this be a deal breaker.