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2013-09-19 8:41 PM

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Subject: Help drafting a Pre-Nup
Hey BT ... I have a question on which I seriously need help, but don't want to turn to facebook or my social circle to keep this from my family, so I'm posing the question to a bunch of strangers who may have more expertise and experience ... :/

My boyfriend of 3 years and I have decided to move in together, which for us is the equivalent of getting married ie: lifetime commitment and forever and all that ... and we want a "pre nup" ...

Background: We are both divorced professionals, I'm in my late 30's he in his late 40's, I'm childless and he has 2 amazingly awesome teenage sons (well, I guess I'm a step mom now) ... my previous relationship ended fairly "amicably" if you can say that - he was cheating on me and simply walked out and didn't fight for anything and it was all over pretty quick. His divorce took years and was long and drawn out and bordered on petty and nasty.

I'm looking for help on what to put in our pre-nup from my end ... ok the typical stuff he wants his kids taken care of in the event of his early and untimely death - I get that, but I'll specify that he set up some kind of trust for the kids then so I'm not forced to sell our family home in the midst of my grief. If our relationship goes sideways he doesn't want to see himself lose his home and his stuff again, I get that, and perhaps a document of what's mine and what's his re: the big stuff would be pertinent upon moving in. I'm all for this - it protects me as well as him. But what on earth do I stipulate? I'm going in to the relationship with much less - he makes a larger salary than I do and he has a lot more savings than I do ... I'll be selling my house to move into his, as his is much larger and on a lake. We plan to build a new home together (on an acreage) in the next 5 years. I'm going to be setting aside some money from the sale of my house for a personal savings account, but I'll give some to him as equity to be put on title on the current home. Any other ideas or must-includes?

I'd like to point out that I love this man deeply, obviously, and like him a whole lot to boot. Neither of us anticipate the relationship ending - we have just both been burned and want to be well protected should the worst happen. And I don't ever want what's not mine - I want this to be fair from both sides.

Thanks in advance!!

Edited by bodhi_girl 2013-09-19 8:45 PM


2013-09-20 7:59 AM
in reply to: bodhi_girl

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Subject: RE: Help drafting a Pre-Nup
For taking care of the kids, he needs to get life insurance and a will.

I'm not sure on how to arrange the money/assets portion, but you should probably put in something about required pizza 4 times a week.
2013-09-20 10:33 AM
in reply to: jmcconne

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Subject: RE: Help drafting a Pre-Nup

 

Just a thought/question here. But if you aren't getting legally married can a pre nup actually be legally binding? I suppose you could have an agreement surrounding the purchase of a house and how life insurance funds are to be divided but I don't know that it would be an actual pre-nup without any nuptials. (Unless of course you plan on going to the court house and I am just way off base).

 

Anyway, my advice would be to get a lawyer to do all this for you. A good lawyer can create the trust you need for his life insurance funds that will determine how his kids are taken care of, and they can help with the house situation as well. 

It is hard to think of how bad a situation can get when everything is going well, but this agreement is for just such a disaster, and in that disaster you can't expect anyone to act rationally or normally. That is not the time you want to be relying on a few page word doc you wrote up with the advice of BT.

So get some life insurance if he doesn't already have it, and then get a lawyer to set up the trust and whatever agreement you want for the rest of the combined assets. 

2013-09-20 10:59 AM
in reply to: bodhi_girl

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Subject: RE: Help drafting a Pre-Nup

Sounds to me like you need a cohabitation agreement not a pre nup.

2013-09-20 11:06 AM
in reply to: bodhi_girl

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Kansas
Subject: RE: Help drafting a Pre-Nup

Not a lawyer or expert, but...

To me, agreeing that what you came into the marriage with is un-touchable is a logical first step. Like you mentioned, trying to make a killing and taking what was not yours in an unfortunate event would not be my style.

But you'll have to decide how you feel about assets accumulated WHILE you are married. Does that get split 50/50? Or do you continue to divide "yours" and "mine" while you are together?

Also confused on the legality if you are not married by law. 

2013-09-20 11:53 AM
in reply to: 0

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Subject: RE: Help drafting a Pre-Nup
Originally posted by lisac957

Not a lawyer or expert, but...

To me, agreeing that what you came into the marriage with is un-touchable is a logical first step. Like you mentioned, trying to make a killing and taking what was not yours in an unfortunate event would not be my style.

But you'll have to decide how you feel about assets accumulated WHILE you are married. Does that get split 50/50? Or do you continue to divide "yours" and "mine" while you are together?

Also confused on the legality if you are not married by law. 

ALSO not a lawyer or expert - but i don't think you can "prenup" non-existent assets.  it only covers property before hand and known assets (inheritances and such) but how could you write "if we buy a house or win the lottery we split 50/50"



Edited by mehaner 2013-09-20 11:53 AM


2013-09-20 2:52 PM
in reply to: mehaner

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Kansas
Subject: RE: Help drafting a Pre-Nup
Originally posted by mehaner
Originally posted by lisac957

Not a lawyer or expert, but...

To me, agreeing that what you came into the marriage with is un-touchable is a logical first step. Like you mentioned, trying to make a killing and taking what was not yours in an unfortunate event would not be my style.

But you'll have to decide how you feel about assets accumulated WHILE you are married. Does that get split 50/50? Or do you continue to divide "yours" and "mine" while you are together?

Also confused on the legality if you are not married by law. 

ALSO not a lawyer or expert - but i don't think you can "prenup" non-existent assets.  it only covers property before hand and known assets (inheritances and such) but how could you write "if we buy a house or win the lottery we split 50/50"

Where are the BT lawyers?

IDK I am thinking of an example where say, one spouse gets bonus money from his/her job and stashes it in savings (year after year). If they split up, does the other spouse get to claim half of that bonus money when they had nothing to do with how it was accumulated? What about 401K accumulation? (I've heard horror stories from one spouse getting HALF of the other's 401K in divorce) No idea. 

2013-09-21 9:35 AM
in reply to: bodhi_girl

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Subject: RE: Help drafting a Pre-Nup
Ok so it's not a real "Pre-Nup" that's just a word I used because I don't know what else to call it. We are going to see a lawyer, we are having wills done at the same time as the "document that shall remain nameless" ... it's more for protection of property and finances should the worst happen. His ex fought him for years for every penny she could squeeze out of him, including a large portion of his pension/savings that he accrued through his job. He doesn't want that to happen again, and I can't blame him. Like I said, it protects both of us and should we split down the road I'd like it to be as painless as possible ...
2013-09-21 9:39 AM
in reply to: lisac957

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Subject: RE: Help drafting a Pre-Nup
Originally posted by lisac957
Originally posted by mehaner
Originally posted by lisac957

Not a lawyer or expert, but...

To me, agreeing that what you came into the marriage with is un-touchable is a logical first step. Like you mentioned, trying to make a killing and taking what was not yours in an unfortunate event would not be my style.

But you'll have to decide how you feel about assets accumulated WHILE you are married. Does that get split 50/50? Or do you continue to divide "yours" and "mine" while you are together?

Also confused on the legality if you are not married by law. 

ALSO not a lawyer or expert - but i don't think you can "prenup" non-existent assets.  it only covers property before hand and known assets (inheritances and such) but how could you write "if we buy a house or win the lottery we split 50/50"

Where are the BT lawyers?

IDK I am thinking of an example where say, one spouse gets bonus money from his/her job and stashes it in savings (year after year). If they split up, does the other spouse get to claim half of that bonus money when they had nothing to do with how it was accumulated? What about 401K accumulation? (I've heard horror stories from one spouse getting HALF of the other's 401K in divorce) No idea. 

oh I understand, but in theory while i'm married, all my bonuses/retirement/etc I earn now that i'm married are automatically a part of my household's finances, so if he has claim to them while we are married, why would he not have claim to them if we split up?  (although he makes slightly more than me so I would win in this situation, mwah hahaha!)

2013-09-23 8:49 AM
in reply to: mehaner

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Subject: RE: Help drafting a Pre-Nup
Originally posted by mehaner
Originally posted by lisac957
Originally posted by mehaner
Originally posted by lisac957

Not a lawyer or expert, but...

To me, agreeing that what you came into the marriage with is un-touchable is a logical first step. Like you mentioned, trying to make a killing and taking what was not yours in an unfortunate event would not be my style.

But you'll have to decide how you feel about assets accumulated WHILE you are married. Does that get split 50/50? Or do you continue to divide "yours" and "mine" while you are together?

Also confused on the legality if you are not married by law. 

ALSO not a lawyer or expert - but i don't think you can "prenup" non-existent assets.  it only covers property before hand and known assets (inheritances and such) but how could you write "if we buy a house or win the lottery we split 50/50"

Where are the BT lawyers?

IDK I am thinking of an example where say, one spouse gets bonus money from his/her job and stashes it in savings (year after year). If they split up, does the other spouse get to claim half of that bonus money when they had nothing to do with how it was accumulated? What about 401K accumulation? (I've heard horror stories from one spouse getting HALF of the other's 401K in divorce) No idea. 

oh I understand, but in theory while i'm married, all my bonuses/retirement/etc I earn now that i'm married are automatically a part of my household's finances, so if he has claim to them while we are married, why would he not have claim to them if we split up?  (although he makes slightly more than me so I would win in this situation, mwah hahaha!)

I agree, I'm pretty sure that once you're married any new assets, income, retirement accounts, etc.. are all joint property.  Pre-Nups are just for stuff you have before you get married.

I was poor as dirt when I got married at 18 so it wasn't an issue.  ;-)

2013-09-23 9:44 AM
in reply to: tuwood

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Kansas
Subject: RE: Help drafting a Pre-Nup
Originally posted by tuwood

I agree, I'm pretty sure that once you're married any new assets, income, retirement accounts, etc.. are all joint property.  Pre-Nups are just for stuff you have before you get married.

I think some people have been so burned in the past they're starting to re-think this line of thinking... 
And for the OP especially if there is not a legal marriage it might be something worth considering.  



2013-09-23 10:25 AM
in reply to: 0

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Subject: RE: Help drafting a Pre-Nup

Originally posted by bodhi_girl Ok so it's not a real "Pre-Nup" that's just a word I used because I don't know what else to call it. We are going to see a lawyer, we are having wills done at the same time as the "document that shall remain nameless" ... it's more for protection of property and finances should the worst happen. His ex fought him for years for every penny she could squeeze out of him, including a large portion of his pension/savings that he accrued through his job. He doesn't want that to happen again, and I can't blame him. Like I said, it protects both of us and should we split down the road I'd like it to be as painless as possible ...

One approach to consider may be setting up a corporation to manage your joint assets (real estate, etc).  Or maybe something like a trust.    I am thinking about my husband who, in his 20s, owned a house jointly with several other friends.  This somehow protected them individually.

As far as the finances go, I would honestly just keep them separate.  I am married and keep separate finances, so it's not unheard.   You would then have to come to some agreement about how pays for what, etc.

You could simply draw up basic contracts if there's something big that doesn't necessarily fit the every day course of decisions.   Like in your house building example, you lay out who is payiing what, when and why. 

I think that looking at this in advance isn't so much what you need, but you need to take each decision as it comes. No court in the land would require you to share/split assets if you weren't married (which is a contract) without any other written agreement at play.

This is the product of my imagination and knowing too much but not enough about contracts, but I hope this gives you some ideas.  Or, maybe a lawyer will read this and chime in this morning!  Good luck.



Edited by BikerGrrrl 2013-09-23 10:27 AM
2013-09-23 10:28 AM
in reply to: BikerGrrrl

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Subject: RE: Help drafting a Pre-Nup
P.S. I think an appointment with a family lawyer would be well worth the hourly fee.
2013-09-23 10:41 AM
in reply to: BikerGrrrl

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Subject: RE: Help drafting a Pre-Nup
I would second/third etc the recommendations to visit a lawyer. Not getting married adds an additional layer of complexity to the situation, and the legal outcome of this will likely vary by state, depending on what your state says about common law marriages. Not getting legally married may introduce some ambiguities in the time before the common law marriage sets in, but you can address some of this in an agreement beforehand.

Also, are you adopting his children? If something were to happen to him before the kids are "adults" you may have a hard time being able to make decisions on their behalf, their mother will likely end up with custody of them in that case.

You may also want to think about having him give you power of attorney for health care decisions. Without it, you may have a hard time directing his care in the event something happens.

There are a lot of issues that getting married shortcuts. I'm not advocating for that, just pointing out that there are a lot of issues to address, and a family law attorney would be a very good place to start now, before a crisis comes up.
2013-09-24 11:08 AM
in reply to: kmac1346

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Subject: RE: Help drafting a Pre-Nup
I'm with everyone else on see a lawyer

And the separate finances - and along those lines whose responsible for what (ie you each pay 50% of the mortgage/utilities) or work out some other arrangement (he pays mortgage - you pay taxes)...

It's hard to think about what MIGHT go wrong - lots can but lots can also go right that you don't plan for either
2013-09-24 12:49 PM
in reply to: bodhi_girl

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Subject: RE: Help drafting a Pre-Nup

So, I fairly recently broke up with my ex boyfriend and moved out of the house we rented together.

It's been a HUGE pain in the butt working out everything financially.

He had some of his personal debt on our shared credit card, which was opened in my name and I added him (initially for JOINT expenses only) when we moved in together. I allowed this to happen, and in hindsight, it was a stupid move.

The other big issue was our lease. We were both on it, but I moved out. 

It eventually came to a Promissory Note - not executed by a lawyer, but reviewed by a lawyer friend of mine. Got it notarized, though it wasn't necessary.  I'm still paying a portion of the rent until we find someone to take it over (the landlord is involved and super helpful), and he's on a payment schedule to pay me back. If he defaults, I have the proof I need to go to a collections agency.

Things I did that were smart:

1. Paid for all dog-related expenses, ever - he's my dog, and he'd have no ground whatsoever to keep him under the circumstances.

2. Never joined bank accounts - just had the one shared card.

Things I would do differently:

1. Never allow him to put his personal stuff on my card. It was mostly surgery bills, so I was sympathetic. Next time, it'll be their problem, not mine. If I DO allow it, there will be a payment plan from day 1.

Things I'm not sure about:

1. Renting the house together. This left neither of us an out, but we did move across the country together.

In your shoes, I'd be sure to discuss who pays what for the kids, what your responsibilities are on the home (rent, mortgages, taxes, utilities). If you're putting money into the house, what happens if you split? Does he have life insurance / a will? That will over things like an untimely death.

I'd work out details of the relationship ending, even though you never anticipate it. I NEVER expected my last relationship to end like it did. But it did - and I moved out ASAP - and was left with dealing with a lot of BS in it's wake.



2013-09-24 8:19 PM
in reply to: 0

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Subject: RE: Help drafting a Pre-Nup
Thank you for the advice everyone - our lawyer appointment is next Thursday so there's a lot of thinking and talking and planning that has to happen before then! Any ideas are welcome. Oh and it now has a name - a "Cohabitation Agreement". I never thought I'd be one of these people that gets one, but life deals you funny cards sometimes.

I agree with what someone said earlier - a lot of people (at least in my experience/social circle) are re-thinking the whole marriage/common-law thing and protecting themselves legally by other means. Just because I accrue a pension while we're together doesn't mean he should automatically have access to it should we split in 10 years. My pension is a result of the long hard hours *I* put in on the job. He's got his own pension, which I would never dream of touching. Stuffs like that.



Edited by bodhi_girl 2013-09-24 8:24 PM
2013-09-25 6:49 AM
in reply to: bodhi_girl

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Subject: RE: Help drafting a Pre-Nup
No marriage equals no pre nup.


All you do is take your crap with you when you leave. No lawyers needed. Just like any marriage what you come in to the relationship with is yours and his is his.

You should talk to an attorney not a bunch of strangers on an internet forum
2013-09-25 6:50 AM
in reply to: bodhi_girl

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Subject: RE: Help drafting a Pre-Nup
Originally posted by bodhi_girl

Thank you for the advice everyone - our lawyer appointment is next Thursday so there's a lot of thinking and talking and planning that has to happen before then! Any ideas are welcome. Oh and it now has a name - a "Cohabitation Agreement". I never thought I'd be one of these people that gets one, but life deals you funny cards sometimes.

I agree with what someone said earlier - a lot of people (at least in my experience/social circle) are re-thinking the whole marriage/common-law thing and protecting themselves legally by other means. Just because I accrue a pension while we're together doesn't mean he should automatically have access to it should we split in 10 years. My pension is a result of the long hard hours *I* put in on the job. He's got his own pension, which I would never dream of touching. Stuffs like that.




You have no legal right to his pension unless you get legally married. I see you are in Canada but in the US it's for legally married spouses only. Even in the US there aren't many states that recognize "common law" marriage.
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