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Taboo money topics: How to talk to your partner about drafting a prenup

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If a prenup is part of your wedding prep, you're not alone. About 6 in 10 attorneys say they have seen a boost in requests for prenuptial agreements, according to a 2016 survey cited from the American Academy of Matrimonial Lawyers.

"I think it's become more common with younger people, especially younger people who are doing well in their careers, because they're getting married later, [and] have amassed a good amount of wealth," says Yesenia Rivera-Sipes, a lawyer in Yonkers, New York, who specializes in family and matrimonial law.

This spike in prenups may signal that people are becoming more comfortable with the idea of signing this type of agreement, but having the conversation with your partner can still be tricky. Here's how to make it easier.

What's a prenup?

A prenuptial agreement is a contract that both members of a couple sign before getting married to establish how their assets will be divided in the event of divorce, or if one person passes away. It can be more worthwhile to put a prenup in place if one partner has substantial assets or debts.

A prenup is "meant to minimize litigation and conflict at the end of a marriage, if that ever happens," says Rivera-Sipes. "The goal is for each party to have full disclosure of the other party's assets and debts so that they're able to make decisions in the prenup that are based on the other party's full financial picture."

How to have the conversation

"The worst thing you can do is sneak attack your spouse by having them served with legal papers," says Rivera-Sipes. "That doesn't really build trust, which is super-important in having a successful marriage so that you never have to use that prenup."

Coming up with a fair agreement is a process. It can take a few days if both parties are on the same page about how they wish to split their assets, or it could take months if there are disagreements about how you'd divide a shared asset like your home.

"Marriage is really a legal contract between you and your partner, and discussing a prenup, if you're interested in one, is your first business transaction," she says.

Marriage is really a legal contract between you and your partner, and discussing a prenup, if you're interested in one, is your first business transaction.
Yesenia Rivera-Sipes
lawyer specializing in family and matrimonial law

Couples should talk candidly about why they feel a prenup is necessary and how it can be used to protect both parties, says Rivera-Sipes. Try not to get too emotional about the process: "Most couples draft their prenup, sign it, and then put it in a box and never look at it again, so you can't take it too personally. It's just another layer of protection in place."

Even if you never need to use it, there are steps you should take to make sure that your agreement is fair:

  • Start as soon as you're engaged: Rivera-Sipes recommends having the conversation as early as possible. "I would say the sooner the better, because one of the ways you can challenge a prenuptial agreement is if it's done under duress — say, you were presented with the prenup on the eve of the marriage."
  • Vet your lawyer: State laws can make these agreements complicated, and one that's poorly constructed may not hold up in court, leaving you unprotected. So don't settle for a "jack of all trades" attorney. Seek out counsel from a lawyer whose focus is matrimonial law, as they'll be more knowledgeable on the subject and laws in your state, and pinpoint any red flags or any unfair language in your agreement.
  • Be thorough: Prenups require full disclosure. Work with your attorney and carefully comb through your financial documents to make sure you're listing all of your assets, debts, investments, and any other crucial pieces of information about your financial situation.

Having an honest conversation with your partner from the start will help you establish open and honest communication and clear up any lingering questions about your finances before your big day. "Get it out of the way so that you can enjoy planning your marriage and it won't be this dark cloud over what should be a very happy time in your life," says Rivera-Sipes.

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