Three things to consider before asking for a pre-nup

(Fotolia)

(Fotolia)

Geoff Williams, Reuters

, Last Updated: 4:18 PM ET

NEW YORK - You could say Jennifer Fugo, 33, is part of a new pre-nup generation. She and her husband aren't rich. Fugo is a certified gluten-free health coach in Philadelphia and her husband - who just came off a four-year stretch of unemployment - works in post-production television.

But Fugo's father, a physician, always insisted that his two daughters get a pre-nuptial agreement before getting married. Fugo and her sister both have some real estate - single-family homes - that they'll someday inherit.

"My grandparents and great aunts had worked their butts off in order to invest their savings in real estate, and my father felt that he didn't want that to leave our family should his daughters ever get divorced," Fugo says.

Growing up, Fugo knew that with the wedding cake and gown, a pre-nuptial agreement would be part of her marriage ritual. The what's-mine-is-mine discussion turned off a former boyfriend, but it wasn't an issue when she started dating her husband, who was a high school classmate.

"His parents are divorced, and he saw the benefit to having the legal details sussed out ahead of time while we are happy should things ever go south," says Fugo, who married in May 2010. Their pre-nup, she says, basically states that anything they each had before the marriage is still theirs. Anything they buy together, they split.

Pre-nups are more popular than ever, according to a recent survey from the American Academy of Matrimonial Lawyers (AAML), which has 1,600 members. Sixty-three percent of divorce attorneys in the survey cited an increase in prenuptial agreements during the past three years, and the top reason 80% of the respondents gave for pre-nups is for the "protection of separate property."

And perhaps reflecting the fact that women are often the breadwinners just as much as men, 46% of the divorce attorneys observed an increase in the women requesting pre-nups.

But before asking a partner for a pre-nup, here are three things to consider.

PRE-NUPS ARE HARD TO DISCUSS

Even if you're comfortable with the idea of pre-nups, don't assume your partner will be, New York City-based AAML president Anton Abramowitz cautions. "You're saying to them, 'I love you, and I want to spend the rest of my life with you, but I'm not sure I trust you.' You really have to handle the conversation with delicacy and the kid gloves approach."

Even if your partner agrees, tread carefully when working out the details, Abramowitz adds. "I've seen a lot of people scared off, if the negotiations take a very hard line."

NOT EVERYONE NEEDS A PRE-NUP

Pre-nups are designed to protect assets brought into the marriage, and if you don't have any yet, don't feel as if you're doing something wrong by not asking your partner for a pre-nup.

"If you're making less than $100,000 a year, there probably isn't a compelling reason to get a pre-nup," says Abramowitz. "When you have assets over $200,000, that's where you'll see most of it."

In a typical agreement, Abramowitz says, couples will decide how to share expenses, and some topics of discussion should include if the couple will have joint or separate bank accounts and whether one spouse will stay at home if there are children in their future.

Generally, the best candidates for a pre-nup, besides anyone with substantial assets, are those going into a second or third marriage, says Bonnie Sockel-Stone, a marital and family attorney in Miami, Fla.

They need to make sure that their children are protected from another divorce, says Sockel-Stone. They also might have financial commitments, such as alimony, that could be difficult to meet without a pre-nup. Also, older couples who want to make sure their estate goes to their children and not a divorced spouse.

USE A PRE-NUP TO DISCUSS FINANCES

You may not need a pre-nup, but you may want one, anyway.

Patricia Snyder, 33, is an office administrator in Woodland Hills, Calif., and her husband is a full-time micro-biology student who also waits tables. She decided she wanted a pre-nup while working for a divorce attorney.

"I've seen some crazy divorces," says Snyder, offering up an example of a guy who left his wife of 25 years, with 12 children and hundreds of thousands of tax debt, got a facelift, a penile implant and then left the country.

But the divorces that really resonated were those in which husbands felt that their stay-at-home wife didn't have a real job and thus hadn't contributed monetarily to the family.

Working out a pre-nup meant not just devising financial parameters - their pre-marital assets are their own, Snyder says, as are their own family heirlooms - but it forced her and her future husband to discuss what they each wanted out of their marriage. They also put in the pre-nup that they would seek out counseling before ever splitting up.

"That's why I think the pre-nup conversation is so important," Snyder says. "It gets couples talking about their marriage expectations and their financial expectations before the wedding, instead of afterwards when they're kind of already trapped."


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