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He wants a Prenuptial Agreement. How do I approach this topic?


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Hi everyone,

 

My boyfriend and I (yes, boyfriend, not engaged yet) are moving in together in the next couple of weeks after 1+ years in a long-distance relationship. I am moving to him. Last year, he took a very well-paying job at a good company on the West Coast. I am an academic in the Humanities, just starting out my career and my salary is year-to-year, contingent, and much lower than his at the moment. (I am looking for tenure-track work but it might be 2-3 years before I have a dependable job with tenured security and perks, in other words).

 

We are not yet engaged, but have discussed marriage at length and he is (in his words) waiting for that perfect moment to "surprise me" with a proposal. In a perfect world, the move to engagement would have happened more spontaneously, but it is what it is: I wouldn't move to join him without some level of stated commitment and an understanding that we're on the way to engagement. So viola.

 

Anyway, yesterday we were discussing money stuff, planning a budget, etc, before we move into this new house (rented) in the next month. And before I knew it, we had moved to discussing our longer-term financial goals. Which is fine.

 

But then he mentioned that he would feel much more secure if we obtained and signed a prenuptial agreement before we tied the knot. (the sound of brakes screeched in my head when I heard this). He explained that when he was a boy, he saw his parents go through a really nasty divorce; his dad (an alcoholic who cheated on his wife) somehow almost wrested the house from his mom (the breadwinner and the one who got sole custody) on the basis that the family home was "communal property," despite that mom was the sole name on the papers (or something). Anyway, my BF sees a prenup as a way to keep really protracted problems like that from happening to us (god forbid). He says he wants to protect a) his 401K and b) possibly any real estate we would accumulate (assuming, of course, that he's paying for the house... and assumption I find problematic).

 

My gut told me to just flat out refuse a prenup that has any provisions waiving communal property rights. For a couple reasons:

1) If I'm living in a house with a husband, my name is going on the paperwork and I'm paying towards it, period. I refuse to be my husband's "tenant" for all intents and purposes;

2) The assumption of a prenup written BEFORE I get my career fully in place is that my husband is making 5 times what I do. Right this second, he is making 5 times my annual salary. But in 2-3 years, he will be making twice my annual salary, if that. I will never be "equal" to him in terms of salary, but I don't see the differential as high enough to warrant a prenup on communal property. (I'm happy to be proven wrong, though... I need to learn more about these agreements).

 

I don't know about his 401K; it seems reasonable on the face of it that I could waive my right to dip into his 401K in the event of a divorce. But tell me, LS people, is there some aspect to this I'm missing?

 

Anyway, I wanted to ask you all about prenup agreements in general, and about the "Communal Property Rights" part in particular. Are such agreements really a way for my more well-salaried husband-to-be to protect himself in the event of the worst-case scenario? Or are they a way for him to protect his assets at my legal expense?

 

Please, no gender wars commentary. I would most like a discussion about the costs/benefits of a prenup, given my situation above. I'm not a "golddigger" and he's not litigious. We're just two early-30 somethings that are trying to figure out how to do this thing right, legally.

 

Thanks!

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Also, (sorry to double post), I think it should be known that we have already basically agreed that when it comes to geographical location, his career will take precedence over mine. This is not some kind of anti-feminist thing and yes, I've read Lean In, but in practical terms it is better for both of us long-term to live where his job takes him.

 

But at the same time, this puts a damper on my own career. Doesn't kill it completely, but lets just say that my job search will be longer, and my salary probably lower, as a result of my decision to put his career frist.

 

So I balk at the notion that we should waive "communal property and income" if married. Because if I'm making sacrifices and taking risks in the name of commitment, shouldn't I expect the same from him?

 

IDK. Any thoughts you all can offer would be appreciated.

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GorillaTheater

Jeez, kind of rips the romance out of the picture, at least temporarily.

 

I'd make it very clear that any pre-nup will be mutual, at least insofar as 401K's and any other retirement program, and that you will not be contributing financially to any real property he'd keep after a divorce. Maybe he should protect himself, I can't really say. But you should be doing the same.

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If he was asking for a prenup for assets he had ALREADY acquired, I'd see his point.

 

But he's asking for a prenup to protect assets he plans to acquire in the future WITH YOU, otherwise known as 'marital assets' otherwise known as legally, rightfully, and ethically 1/2 yours NO MATTER WHO MAKES MORE money.

 

Never in a million years sweet heart.

 

I could go into more detail as to why you deserve half of future assets, if you like, but I'm telling you I'd walk away from this guy completely before agreeing to sign such a rubbish document.

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Yeah, when it comes to housing, I'm very much inclined to turn him down flat. I am very uncomfortable with a situation where I get married and am completely dependent on my husband for housing. He has said basically, "I'll buy the house, you don't have to contribute but I want to own it." I don't think that's realistic at all... sure, he can afford a house on his own without my salary, but if I'm living somewhere with a mortgage, I refuse to not be a name on that mortgage. I also refuse to live somewhere I'm not paying for. I mean, what would happen to my credit score? I'd get not credit for paying towards a house if my name isn't on it. It just seems like an impoverishing, unfair circumstance to me. And the legal battle we be avoiding down the road is so incredibly remote that it seems silly for me to assume that much risk up front.

 

My BF was receptive when I shared my resignations; he basically hadn't considered how such a prenup would effective ask me to take all the fiscal risks of the marriage without any protections of my own. I asked him what a more equitable prenup would look like, and he didn't really have an answer. So the question was laid to rest. But to say I'm preoccupied thinking about this would be an understatement.

 

As for the 401K thing; I'm leaning towards saying "okay" to maintaining our separate retirement accounts if it will make him feel better. I mean, why would I need access to his retirement nestegg? Are there legitimate reasons I would want some of that 401K money that I'm just not considering?

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I could go into more detail as to why you deserve half of future assets, if you like, but I'm telling you I'd walk away from this guy completely before agreeing to sign such a rubbish document.

 

Right. Well I think he may have been misframing the question of odds, here, for starters.

1) His experience watching his parents go through a very protracted divorced weighs heavily in his mind. I kind of wonder how much his past family drama is driving this recent concern with legal documents.

 

2) He did at one point say "well, look. You still get a better deal even with the prenup than without getting married. I will agree to generous alimony payments and a trust for any children all the way through college. I will agree to alternative housing costs within limits in the event of a divorce, etc. You will still get a better financial deal getting married and divorced to me than by staying single."

I replied, "so what makes you think if we don't get married that I would stay single instead? Have you considered the possibility that I might alternatively seek a partner who doesn't insist on a prenup and marry them instead?"

Maybe it was wrong, maybe it was right to say that... but he did get a lot more receptive to the idea that maybe a prenup isn't the fairest possible document once I presented him with the notion that I could marry elsewhere.

 

Anyway, I think he thought about the prenup as a good protection for him, but genuinely had not considered how it would protect him at my expense. So, LS, is there any way at all that a prenup agreement can offer the richer party certain "protections" without damaging the poorer party's fiscal rights?

 

What does a "fair" prenup look like? I guess I don't know.

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A fair prenup is one that covers assets he has already accumulated. For example, a house he acquired before he knew you, stocks bonds trusts that he already owned, 401k money he has already saved. For example, my fiance offered to sign a prenup to protect my business that I had already built before we began dating. Does you boyfriend already have significant assets worth protecting? If so, a prenup to protect THOSE assets is fair.

 

If he has nothing now and is aiming to walk away with the majority of the future marital assets (any and all assets acquired during a marriage are marital assets), then that's not fair. That is so unfair I would view it as criminal.

 

If he has nothing NOW, then a prenup is preposterous.

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He wants a Prenuptial Agreement. How do I approach this topic?

 

"I'll have my lawyer call yours and we'll get it done"

 

To me, this is part and parcel to estate and family planning these days, especially for professionals or people who own businesses and/or own substantial assets prior to marriage.

 

Another example would be a young, credentialed professional like a JD or MD who has funded their own professional education and is proceeding into private or group practice prior to getting married. They may be 'poor' in the asset sense but their professional prospects have enormous value.

 

To me, this is all part of the equality and financial independence men and women have been striving for during the last 50-70 years. I would certainly expect a female professional to seek to protect her business and/or assets/income, so should I. Getting married with substantial assets and later getting divorced taught me how inexpensive my lawyer's time can truly be. Good luck.

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As for the 401K thing; I'm leaning towards saying "okay" to maintaining our separate retirement accounts if it will make him feel better. I mean, why would I need access to his retirement nestegg? Are there legitimate reasons I would want some of that 401K money that I'm just not considering?

 

What comes to mind is if for some reason you need to leave the workforce for any prolonged period of time, so you are not contributing to your own retirement account. Like, God forbid you have a child who is born with a disability, so you need to stay home with that child for a few years or longer. Or if you decide at some point you want to not work and home school your children. Or if something happens to you and you aren't able to work for some period of time or aren't able to work as much or in the type of job you currently have. Being able to access his retirement account takes into account the time you weren't able to contribute to yours.

 

If he wants to pay the mortgage (and I assume property taxes), how otherwise does he propose splitting up paying the household expenses, such as food, utilities, etc.? I assume he wouldn't expect you to contribute any money to the upkeep of the house (i.e. landscaping, roof, furnace, etc.)?

 

I find it really strange that he wants to keep the house in his name, though, and to pay for it by himself, given your ages and that you are expecting to build a family together. I don't think I would agree to that unless we could come up with adequate protection for me. Would he be agreeable to you setting aside from your salary an amount of money equivalent to the mortgage payment, that would be for your use own and not touchable by him in the event of divorce? That way, in the event that you do get divorced and he gets the house, you have your own nest egg equivalent to what he's paid in with which to buy your own house.

 

Like Janesays said, the point of the prenup is to protect assets that you are bringing into the marriage. They are much more common for people entering into their second marriages or people who get married later in life, when they have worked for many years and have accumulated stuff. They really aren't as common for younger people who are just starting out their careers because at that point most people don't have much stuff to worry about.

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If he has nothing now and is aiming to walk away with the majority of the future marital assets (any and all assets acquired during a marriage are marital assets), then that's not fair. That is so unfair I would view it as criminal.

 

Beyond that, I do not think it would hold up legally.

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Anyway, I wanted to ask you all about prenup agreements in general, and about the "Communal Property Rights" part in particular. Are such agreements really a way for my more well-salaried husband-to-be to protect himself in the event of the worst-case scenario? Or are they a way for him to protect his assets at my legal expense?

 

If you live in a community property state, debts, income and assets otherwise earned or acquired during the marriage are generally considered community property. An example of an exception would be an inheritance to one of the spouses and maintained separately; another would be an asset transmuted by mutual agreement of the parties. Your lawyer can explain the details relevant to your jurisdiction, as well as explain what 'separate' property is, and how 'co-mingling' can transmute separate property into community property. It can get very complex. I know because I paid a lawyer a lot of money to plow through it.

 

We're just two early-30 somethings that are trying to figure out how to do this thing right, legally.

 

You're of an age where this topic is worthy of discussion and exploration as it appears you are both degreed professionals and at least one of you, perhaps both, already has/have substantial assets. By the time I was your age, I had a successful business and owned two homes, as an example. What prenups seek to protect is one's life work from 'taking' by an otherwise unscrupulous spouse, as well as to clearly define the financial agreements pertinent to the legal partnership. People can be incredibly sophisticated in their use of perfectly legal means to take. It happens every day. Once you experience someone robbing you of your life's work, you'll understand the purpose of prenups and other legal contracts a lot more clearly. Hope you never do and have a long and prosperous marriage.

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Nescafe, I am -- literally, as I write this -- in negotiations with a prenup... (I just got off the phone with my lawyer).

 

In my case, I am marrying a doctor who owns his own practice and he has three children. I am an artist and writer who makes a fraction of what he does. In our case, I offered a pre-nup to him because his ExW (also a physician with considerable wealth), ended up with the bulk of their assets in their divorce.

 

I can understand where your boyfriend is coming from insofar as having witnessed his parents' tragedy and the important thing for you to do is to get a lawyer.

 

I am serious.

 

Initially, when I was presented with my pre-nup, I was going to blindly sign what was offered because it made provisions for me in the case of a divorce. However, what my lawyer discovered was that there is a remarkable difference between provisions of a one-year marriage versus a ten-year marriage versus a twenty-year marriage. As we are past child-bearing years, offspring is not a matter of concern, but what you would need to have done is prepare a pre-nup that will take into account your various incomes, potential incomes, and variables of children.

 

As my lawyer has pointed out, a pre-nup is like Earthquake Insurance: You hope and pray it will never be needed, but god help you if you are caught in an earthquake and are not covered. Best to be careful. Don't take specific advice from folks on the 'net. See a lawyer.

 

Lastly, I am still a firm believer in the pre-nup. It is savvy and intelligent business planning and that is, at its legal core, what a marriage is these days. Engaging in a merger that involves finances without a written contract outlining these issues is just stupid. It is part of why I didn't get married to any of my long-term relationships in the past 25 years; my first marriage (age 20 to 25) ended in a financial catastrophe and I never wanted to financially tie myself to another human being. Until now. And even though I want to and am ready to marry again, I still would not do so without legally defining the financial parameters of our relationship and our future.

 

Good luck.

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As you'd said, the problem here is that he's basing it on what you make NOW. What if you get pregnant with twins or triplets and have to stay home 5 years and aren't able to work and bring in a salary. Do you get punished for that? You'll be punished enough trying to get back INTO the work place after playing mommy for 5 or 10 years with all the bright, fresh out of college applicants vying for those jobs in your field.

 

I believe the laws surrounding someone's 401k is that after 10 years of marriage, you're entitled to a portion of it, but I don't recall how much. Since you'll also be saving towards a 401k, maybe you both could mutually agree not to touch each other's if that makes him feel better.

 

But the house thing is bullsh*t. If you're working every day and supporting that house just like he is, then you're entitled to it as well, just like he is. If he wants to treat you like a tenant, than pay him $500 a month rent and don't do any of the housework and cooking and laundry and everything ELSE most women get stuck doing, because tenants don't wash their landlord's dirty underwear, nor do they food shop for them, cook for them, or scrub their toilets. Let him hire Merry Maids.

 

Pffft.

 

So much for no gender wars.

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"I could go into more detail as to why you deserve half of future assets"

 

You could...and while you might legally be correct, it would still be ethically shaky.

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SincereOnlineGuy
He wants a Prenuptial Agreement. How do I approach this topic?

 

 

 

Based on what you have written thus far,

 

 

"... with FAR more emphasis on agreement than on prenuptial".

 

 

You have this giant list of things which matter to you, and this list of things he has stated or implied, to which you won't agree. You just simply aren't there yet.

 

 

 

Contrary to your implied and stated perceptions, you do get a say in all this, but if you enter with a defeatist attitude, you will certainly exit defeated (even before you start).

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Contrary to your implied and stated perceptions, you do get a say in all this, but if you enter with a defeatist attitude, you will certainly exit defeated (even before you start).

^^^ THIS ^^^

 

I know you said your heart sunk and you heard screeching brakes, but it shouldn't be like that. It should show you that he is serious and that is a good thing.

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"I could go into more detail as to why you deserve half of future assets"

 

You could...and while you might legally be correct, it would still be ethically shaky.

 

Do you have advice for me, Sparty? There are substantive points to both of the posts you're attacking... I want to know what your objection/position is.

 

For the details queried in previous posts:

I am 30, he's 31. We both have recent PhDs. He's in STEM, I'm in the Humanities. Neither of is have been married before, no kids, and until he took his first job last year, neither of us had any substantial assets to speak of.

 

However, he is in a fiscal situation that is 1000% better than mine. I'm 70K in student debt; he's debt free. His salary question is settled (he's got work, I'm still "working on it" and depending on year to year postdocs and fellowship with high prestige but little pay). He's socked away the beginnings of a nestegg, purchased a car, started (and fully funded) his 401K for the year. I've paid down some student loans (down from 120K to 70) but have virtually no savings.

 

He does not have substantial "pre-marital" assets that I'm aware of beyond the things he's built up in the last year.

 

Part of these inequities are that I'm a year behind him in the career track; I won't reasonably get the "it" job until next year at the earliest.

 

Honestly, I sort of wonder if I ought to delay engagement/marriage until I get that tenure-track job (e.g. when I'm on sounder financial footing). But then, in this economy, who knows when that will happen?

 

I guess I'm supposing the thing to do is... well, wait for him to propose first of all (we're not even engaged yet! Its frustrates me a little that he brought this up without an engagement first, almost like the prenup will become a condition to that engagement). Then when he brings the idea up again, I will retain separate counsel to walk me through the procedural aspects. I'm still leaning towards outright refusal... but I want to be certain I give the idea its due consideration.

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"I could go into more detail as to why you deserve half of future assets"

 

You could...and while you might legally be correct, it would still be ethically shaky.

 

I am speaking as a woman who got divorced and lost most of my assets in said divorce. To this day, I am not upset I had to part with what we gained together (primarily through MY hard work). Half of it was his, legally AND ethically. Never mind that I had technically 'earned' it. I recognize his other contributions to our relationship and thus believed he deserved half.

 

He got about 80% instead....but only because I was sick of fighting and settled.

 

But I never begrudged him his rightful half. Never.

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^^^ THIS ^^^

 

I know you said your heart sunk and you heard screeching brakes, but it shouldn't be like that. It should show you that he is serious and that is a good thing.

 

Thank you both for this. I have my own baggage with Prenups. Just two years ago I had a friend who's fiance tried to propose a very restrictive prenup on her as a means of control. He also fought her tooth and nail when she sought separate counsel. In hindsight, may of the provisions he'd wanted many not actually have been legal. The document may not have held up in a divorce court anyhow.

 

Anyway, I have my own baggage that makes me go "whaaaa?!?" when I hear those words, "prenuptial agreement."

 

I DO feel very disempowered at the moment. Precisely because I'm a far, far weaker player in this relationship right now money-wise.

 

I also have a deep history of poverty (family, my own upbringing, working kid, etc) and I am really very afraid of winding up in a situation where my inability to "keep up" money-wise will translate into being made into a "junior partner" in my marriage.

 

Anyway, I guess I need to find my cojones and stand up for what I want here, too.

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Do you have advice for me, Sparty? There are substantive points to both of the posts you're attacking... I want to know what your objection/position is.

 

For the details queried in previous posts:

I am 30, he's 31. We both have recent PhDs. He's in STEM, I'm in the Humanities. Neither of is have been married before, no kids, and until he took his first job last year, neither of us had any substantial assets to speak of.

 

However, he is in a fiscal situation that is 1000% better than mine. I'm 70K in student debt; he's debt free. His salary question is settled (he's got work, I'm still "working on it" and depending on year to year postdocs and fellowship with high prestige but little pay). He's socked away the beginnings of a nestegg, purchased a car, started (and fully funded) his 401K for the year. I've paid down some student loans (down from 120K to 70) but have virtually no savings.

 

He does not have substantial "pre-marital" assets that I'm aware of beyond the things he's built up in the last year.

 

Part of these inequities are that I'm a year behind him in the career track; I won't reasonably get the "it" job until next year at the earliest.

 

Honestly, I sort of wonder if I ought to delay engagement/marriage until I get that tenure-track job (e.g. when I'm on sounder financial footing). But then, in this economy, who knows when that will happen?

 

I guess I'm supposing the thing to do is... well, wait for him to propose first of all (we're not even engaged yet! Its frustrates me a little that he brought this up without an engagement first, almost like the prenup will become a condition to that engagement). Then when he brings the idea up again, I will retain separate counsel to walk me through the procedural aspects. I'm still leaning towards outright refusal... but I want to be certain I give the idea its due consideration.

 

Carrie hit the nail on the head. Get a lawyer. I have moral objections to alimony and even to community property, but that is not really relevant as they have little to do with the law and are based solely on my sense of right and wrong.

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It doesn't matter if you make less money. Heck, it wouldn't matter if you made NO money. Marital assets are marital assets.

 

Think of it this way, your income, while slight, is still income he factors into his decision making when making life plans. For example, I was able to take bigger risks financially when investing my money and starting my own business because my ex husband provided 'buffer' money. Were I single and solely dependent on my own income, I would have to put less into retirement, less into mutual funds, etc. So my investments pan out and my business is a success and my ex should have walked with NOTHING? Without his buffer money, I wouldn't have gotten as far as I did.

 

So we buy a house and I paid 100% of the mortgage and utilities. But that was a marital house. Am I supposed to say that I should get 100% of it because I technically paid for it? What about the fact that living in the house cost my ex the 10 years of potential equity and credit history he could have put into his OWN house had he not married me. Should he walk away with NO nest egg whatsoever because he threw his cards in with mine?

 

No. He deserves his half. And so do you.

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TJust two years ago I had a friend who's fiance tried to propose a very restrictive prenup on her as a means of control. He also fought her tooth and nail when she sought separate counsel. In hindsight, may of the provisions he'd wanted many not actually have been legal.

This is why it is important to both parties have separate, legal counsel. In my case, I was ready to sign the pre-nup as it had been written by my fiance's lawyer, but my fiance insisted that I get my own counsel. He knows I can't afford it and he is giving me the money, but the choice of lawyer and my discussions with her are entirely confidential.

 

So far, I have been surprised at things that she has found that will work in my benefit. For example, I am agreeing to put my career on hold to help take care of his kids. This will save us money on the Nanny that he used to employ. Honestly, I don't mind as it gives me more free time for my artistic endeavors without having to push as hard at getting exhibitions and income from that art. Because of it, the pre-nup has been written that in the case of divorce, I will receive alimony of $X-amount each month. I thought that was very generous and was not expecting him to even offer alimony. But my lawyer brought up the fact that in a dozen years or so, that $X-amount might not take into account inflation or a potential increase in a cost of living.

 

In her example, if we married in 1950 and I signed a pre-nup to agree to $500-a-month alimony after a divorce, I would be making out like a bandit if we had divorced in 1955. BUT, if that marriage lasted 30 years and we divorced in 1980, $500 a month would barely be a livable wage.

 

This is not something I had thought of and while I was surprised to have even been offered an alimony settlement -- and wouldn't have cared if I got one -- my lawyer is looking out for MY best interest in light of the agreement we are reaching regarding my willingness to be an indentured servant.

 

This is just an example. We also have debts, assets, student loans, life insurance policies, 401k's, and more. All these things are matter that are best negotiated through lawyers. They see these things all the time and know the laws.

 

Don't just think you two and write an up agreement and have it stand up in court. Getting appropriate counsel to intelligently take care of yourself now and in the future is the only way to look at it.

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Jeez, kind of rips the romance out of the picture, at least temporarily.

 

I'd make it very clear that any pre-nup will be mutual, at least insofar as 401K's and any other retirement program, and that you will not be contributing financially to any real property he'd keep after a divorce. Maybe he should protect himself, I can't really say. But you should be doing the same.

 

Yeah...

 

OP.. one thing to remember is that the part of the 401-k gained while being married is invested with marital assets.. meaning the money come out of the marriage and his 401-k is being built with an asset that is half yours and the same with a home being paid for with marital assets.

 

I agree with GT that you should be protecting your side as well, if he is all about having you sign one now before he has any real assets then you should also protect any assets you may gain during the marriage as well...

 

Personally.. It sounds like he is talking out of the side of his mouth.. meaning someone put it in his head.. it may not be what he really feels or wants and is parroting someone who was burnt in a divorce.

 

Whatever you do, if you sign one with him please get your OWN attorney and do not use his, his attorney will be looking out for him and you need to have someone looking out for you and his cannot do that.

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Personally.. It sounds like he is talking out of the side of his mouth.. meaning someone put it in his head.. it may not be what he really feels or wants and is parroting someone who was burnt in a divorce.

 

To be brutally honest, I've considered this very possibility. I have no means of proving it (and I would look paranoid if I tried), but I get a vague sense that he's discussed these things with someone before. Someone who was not a lawyer. Could even be future Mother-in-Law.. Who knows.

 

Nonetheless, I guess I'll have to grapple with it. I am planning on 1) getting my own lawyer, 2) making sure I thoroughly understand all angles here, and 3) ensuring that any potential Agreement is completely mutual. I do not intend on 4) waiving my right to any real estate we obtain jointly under any circumstance, though. That just makes me deeply, very uncomfortable.

 

Thanks to all for your input. For reasons not worth even mentioning, I am happy to have an anonymous sounding board like LS to hear some varied perspectives on the topic.

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I'm a huge fan of pre-nups. In fact, even if folk don't go on to sign them I think the questions they raise and the thought processes they trigger are invaluable.

 

What you sign now - if you do - doesn't have to remain in force for ever. Consider it a framework to be amended as your circumstances change. You can't legislate now for where you will be in 5 years but you can consider the options and hopefully begin to pave the way.

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