Dear Quentin,
I work for the government. I will retire in nine years with a full government pension, which will be about $100,000 a year, and will have about $1 million in savings.
My girlfriend makes twice what I make and runs her mom’s company. Her mom has stated in her will that her daughter will inherit her company, money and assets when she dies. That, at a minimum, will be worth a few million dollars.
We are going to get married and I want a prenuptial agreement to protect myself, but my girlfriend is against it.
I fear that even though she will eventually have more assets than me, if her mom puts her business in a trust, I would not be entitled to anything in a divorce and she would be entitled to half of my pension.
What do you think?
About to Say I Do, I Think
Dear About To Say,
It’s hard to debate the pros and cons of a prenuptial agreement with your girlfriend if you don’t know why she is against it.
Is it because she thinks you will never get divorced? That logic cuts both ways: If you’re going to live happily ever after, get a prenup; it won’t make the slightest difference. If you see divorce as a realistic possibility, as it is for millions of couples, go ahead and sign one. Inheritances are not considered community property. Is it because she thinks you will get divorced? In that case, you have more reason to stay within the prenuptial-agreement comfort zone.
Community-property states allow people to take out of their marriage what they brought into it. That includes your savings, as long as you don’t commingle in a joint account. Outside of those community-property states — Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin and an opt-in right in Alaska — assets are divided equitably, but not necessarily equally. The length of the marriage and spouses’ respective incomes play a role.
According to the law firm Cooper Ginsburg Gray, “The ‘marital share’ of the pension is determined by a fraction. The numerator of the fraction is the number of months during the marriage (between the date of marriage and the date of separation) that the employee was employed and earning service toward the pension. The denominator of the fraction is the total number of months of the employee’s service. The spouse can be awarded up to 50% of the marital share.”
I received a letter from a reader last year who considered putting his assets in a secret trust prior to his marriage because his fianceé similarly refused to sign a prenup. While that would likely keep those assets as separate property if he did that before the marriage, I advised him that doing something so surreptitious was a high-risk strategy, and could jeopardize the trust they have in each other in their relationship. Marriage is a contract. A prenup is a contract.
Prenups outline a blueprint for a possible divorce, but they can also set the expected standards for the marriage itself. People include provisions covering everything from alimony, debt, child custody and incapacity to pets, penalties for infidelity and even what partners can write about each other on social media.
A prenuptial agreement may seem to contradict the spirit of the marriage contract, but it is a sensible choice when large sums of money are involved.
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