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The ins and outs of prenuptial agreements

Unless your name is Donald Trump, you may not have thought about the possibility of a prenuptial agreement. But as more couples are getting married later in life, it’s apparent that they aren’t just for rich celebrities anymore.

Prenuptial agreements have gotten a bad rap these days as high-profile couples like Madonna and Guy Richie sort out the details of who gets what in divorce court. However, prenups don’t have to be thought of as a bad thing, nor are they a set-up for divorce.

“Think of a prenuptial agreement as a tailor-made suit and the family code of the state as the off-the-rack version,” explains Dianna Gould-Saltman, a certified family law specialist and partner of Gould-Saltman Law Offices LLP in Los Angeles. “If you think the off-the-rack version – addressing the rights and responsibilities during marriage or, in the event of divorce or after divorce – will work in your marriage, you don’t need one. If you’d rather have something custom made to fit the way you and your fiancée want to run your finances, manage your assets, allocate your responsibilities during marriage, a prenup will do that.”

A big misconception is that prenups must address everything at once, Gould-Saltman says. But a prenup can serve a much simpler purpose by defining what each party is bringing into the marriage.

“A prenup can insulate your partner from your premarital liabilities and can just spell out what you – jointly – intend for your marriage to be,” she says. “This can and should be a document that speaks to how you as a couple define marriage as well as what you intend if the marriage doesn’t work out, and 50 percent of them don’t so it’s not being unromantic to address reality, just pragmatic.”

Though the nuances of family law vary from state to state, it’s always a good idea for both spouses to be represented by independent legal counsel when drawing up a prenuptial agreement.

“These agreements are common among people later in life who have accumulated a significant estate, are contemplating marriage [or] remarriage, and want to insure what they have stays theirs in the event the marriage does not work out,” says Scott Downing of the Dallas-based family law firm McCurley Orsinger McCurley Nelson & Downing.

Prenups can touch upon an assortment of matters, which is where things can get tricky.

“For example, a penalty position could be used if one spouse is caught cheating and a divorce subsequently ensues,” Downing explains. “Prenups can also address long-term support issues in the event of divorce, attorney’s fees, and a wide variety of other areas.”

Prenuptial agreements can help hammer out matters before they become bigger issues by creating clearly defined lines of who gets what and when.

If the only thing you’re bringing into the marriage is a 1972 Ford Pinto, then perhaps a prenup is not for you. In contrast, if one or both of you is entering the marriage with significant assets, getting a prenup might be a good decision. But be prepared to stick to your guns if your significant other is not on board with the whole idea of a prenup.

“The trend in Texas, both through legislation and case law, is to make these agreements harder and harder to set aside,” Downing adds. “If a person is considering getting a prenup, they should be prepared to not go through with the wedding if the other potential spouse refuses to sign.”

© 2008, Tribune Media Services