I signed a prenuptial contract in the USA: why is this necessary and how to avoid mistakes
I married an American four years ago. Before the wedding, we, on the initiative of the groom, entered into a prenuptial agreement, says Camilla Gazieva for Journal.tinkoff.ru.
In this article I will talk about our mistakes and how to avoid them if you want to sign a marriage contract and not spoil the relationship.
I believe that a prenuptial agreement cannot be considered as a business transaction or legal formality, therefore there will be no references to laws and figures in the article. I’ll tell you how we signed the contract and what I think about it.
Prenuptial agreements in Russia and the USA
A marriage contract in both Russia and the United States determines how spouses will be divided if the marriage ends in divorce. In both countries, the court will be guided first by a marriage contract and only then by law.
The contract itself must be legal: written and signed in the presence of a notary. In the United States, a few more requirements must be met, which will be discussed in the article. Some conditions of my American agreement can be applied in Russia without any additions or changes.
In the USA, partners are not prohibited from including fines for treason and distribution of household duties in the marriage contract. But there is a risk that the notary does not certify such an agreement, and the court does not recognize these conditions as legal. Despite the fact that the laws in each state are slightly different, not a single official document says what is considered treason and draining from washing dishes. Prenuptial laws only govern partner finances.
Neither in Russia nor in the United States can conditions of custody and financial support for a child after a divorce be included in a marriage contract. These issues are decided by the court, as they relate to the rights of the child, not the parents. The only exception to the United States is Connecticut, but its laws also state that the court may change the terms of financial assistance to the child.
Contrary to popular belief in the United States, contracts are rarely signed in the first marriage in the United States, because young people get married in about the same financial situation. Partners do not have significant assets, but there can be many debts for studying at the university. More often, prenuptial agreements are signed by those who marry again after a divorce.
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As the groom invited me to sign a marriage contract
In English, a prenuptial agreement is called prenup, or abbreviation for prenuptial agreement. After the wedding - postnup (postnap)
Before the wedding, we had known Dan for five years. I found out about the financial situation of the groom only after he asked me to sign a marriage contract. He did this the day after the marriage proposal. I remember this moment no less than a romantic proposal to become his wife. True, the emotions caused quite the opposite.
It was difficult for me to even discuss the contract, because for this, even before the wedding, I had to think about divorce and talk a lot about money. Before the wedding, I wanted to choose a dress and flowers, not a lawyer.
Talking about money was hard for me too. I grew up in a family where this issue was rarely discussed. Dad earned money, and mom took care of the house and children. If money was needed, then it appeared. I did not know how and can not save. It seemed embarrassing to me to discuss financial matters, ask for a pay raise or admit that I did not have enough money.
In general, the process of signing a prenuptial agreement was painful for me.
At the same time, the marriage contract was a prerequisite for our wedding. “We can get married only if we sign a prenuptial agreement,” the groom said. It was hard for me to take this approach, and Dan thought it was just a formality.
A situation where a marriage contract is offered to be signed by a partner who has more money — that is, one who has something to protect — is common. It happened with us. With the help of the contract, Dan wanted to protect family assets, his future salary and investment income. At that moment I had 500 dollars in my account, a ten-year Ford Focus and a loan in a Russian bank.
Mistakes before talking about the contract
Before the first conversation about the marriage contract, Dan and I made several mistakes. Perhaps because of them, I took the news hard about the need to sign a contract.
We never talked openly about money. Before moving to the United States, I lived in Moscow and earned enough to rent an apartment, provide for myself and travel. I didn’t save anything, but I felt financially stable.
After moving to the USA, I began my studies for a master's degree in health care and worked part-time at the university. The salary of 1000 $ was two times lower than my earnings in Moscow.
We agreed with Dan that I buy products for the two of us, and he pays for everything else. Salaries were barely enough for my food and my personal expenses: telephone, car insurance, gasoline, clothes, cosmetics and entertainment. I did not admit this to Dan, but it made me nervous and angry.
Only two years after the wedding I told my husband that it was difficult for me to talk about money. We started discussing how to make these necessary conversations possible for both of us.
Which is better. Do not hush up financial difficulties. To ask where the partner’s money comes from and share his feelings about finances.
If it’s hard to talk about money, you can discuss it not in a face-to-face conversation, but by phone or in writing. Now we most often talk about money by mail or through a messenger. This allows me to speak more openly and reduces emotional stress.
The groom proposed to sign the contract immediately after the engagement. It was a romantic vacation. Dan made me an offer in a secluded hut in the forests of Montana. The next day we went camping and in the evening he asked: “We are signing a marriage contract, right?”
I was numb from this question, I felt uncomfortable and wanted to cry. We talked about it for about five minutes - I couldn't do it anymore. Everything was somehow clouded right away, I felt insecurity about our relationship: after all, we only decided to get married, and we are already talking about divorce.
How better. Talk about a prenuptial agreement before a marriage proposal so that it doesn't look like blackmail. Perhaps this will make the engagement less romantic. But I think this is better than talking about a contract right after deciding to get married.
Any partner can start a conversation, regardless of whether he wants to sign a contract at all or not. Such a conversation can lead to a discussion of other important financial issues - for example, mortgage payments for an apartment that my wife bought before the wedding. It is not necessary to discuss the details as if you had already decided to get married - you can simply agree that you will conclude a contract if it comes to the wedding.
First draft contract
We started work on the contract immediately after returning from travel. Dan brought me a printed draft. After reading, I was horrified and realized that I did not understand even half - the text was written in a confused legal language.
The essence of the contract, as Dan explained to me, came down to the idea of "with what he came, and with that he left." This position is different from the laws in Idaho, where we were going to get married.
In Idaho, everything that spouses earn and buy after marriage belongs to both of them, and when divorced, it is divided in half. The same applies to debts. This approach is called community property — a jointly acquired property, and only nine out of fifty states practice it.
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In other states of the United States, the common law property approach is applied - what is bought in a marriage by one partner belongs to him. For example, my wife bought a car and registered only for herself - after a divorce, she will receive a car and the husband cannot claim compensation. But if the wife paid for the car with money from the general bank account - the car is common.
When spouses sign a prenuptial agreement, they set their own “laws” that will apply in all states.
How is a prenuptial agreement in the USA
For a marriage contract in the USA to be recognized as legal and difficult to challenge in court, it must be:
- Written, not verbal.
- Signed in the presence of notaries.
- It is clear to both sides. If one of the partners at the time of signing is ill and is not able to soberly assess the situation, the contract cannot be signed.
- Signed after consultation by each party with an independent lawyer. If the lawyer had only one partner at the time of signing the contract, such a contract can be challenged during a divorce. The court may declare the contract unlawful - a party without a lawyer could not competently evaluate the contract and assert its rights.
- Signed in advance of the wedding. If the partner, due to the cancellation of the contract, threatens to cancel the wedding, to which guests have already been invited and everything has been paid for, this is blackmail.
- Without conditions about children, infidelity and household duties. Children are not property. But the court will not understand fines for treason and dirty dishes.
- With full information about assets and liabilities. If one of the parties has concealed something, the contract is recognized as illegal.
- Without conditions that put a husband or wife in a vulnerable position. For example, that one of the partners refuses all its assets after a divorce.
In the US, a contract that is signed very close to the date of the wedding may be invalidated upon divorce. So, one American challenged the marriage contract, which her millionaire husband asked to sign under the threat of canceling the wedding. The ceremony was supposed to take place four days later, and the bride's father had already spent 40 000 dollars on the preparation. She won the trial.
My husband already had a lawyer, but he could not advise both of us. Our lawyers had to work in different offices in order to maintain independence. I didn’t understand anything about the choice of lawyers, so I asked my immigration lawyer for advice.
The services of our lawyers in 2014 year cost 250 $ per hour. For me it was a huge amount, so Dan and I paid for my lawyer. This is not ideal, because it can create an unequal situation: the partner for whom they pay is dependent on another.
1500 $ cost the services of my lawyer: 6 hours at 250 $
But I couldn’t pay for a lawyer myself, so I agreed.
Questions to the draft contract
I went to the first meeting with a lawyer with a list of questions and comments on the draft. Here are the points that have caused me the most questions.
Will the contract be valid in another country? I am a citizen of Russia, and for some time we may not live in the United States. I asked if the contract would work in another country.
It turned out that, most likely, the agreement would not be valid outside of America.
Why is the agreement in English only? I know English well, but not at the level of complex legal formulations. I offered to sign it also in Russian. My lawyer Robert dissuaded me because of the complexity of the translation and the uncertainty about how the agreement would be interpreted in another country in Russian. I agreed: why waste time and money translating a document if in Russia I still can’t use it.
I did not have a translation of the contract into Russian, and I asked the lawyer a lot of questions about the terms and wording. This is one of the reasons why I spent more time with a lawyer than my husband.
We will spend the total money on the property of one of the spouses? There were clauses in the contract that spouses could use common money to pay taxes, insurance and interest on loans for the property of one of them. It seemed to me unfair. For example, if a husband buys a house in a ski resort, why should my income cover the cost of his property?
Robert advised us to agree on this item first among themselves, and then he will help translate our agreements into the legal language. Such advice surprised me. I used to think that a lawyer always gives unequivocal answers to any questions. It turned out that in the marriage contract there are gray areas, according to them, future spouses must make decisions independently.
As a result, we discussed the condition about spending the total money with Dan by e-mail and decided to leave it in the contract.
How will we share future earnings? I was scared to sign a contract and discuss it. Therefore, I asked the lawyer if it is possible to sign a contract in which we will include only the assets of the groom's family, and a couple of years after the wedding, we will add conditions for our personal finances, debts and future earnings.
I wanted to include this arrangement in the app. But the lawyer said that it’s difficult to “agree on an agreement” - the parties can ambiguously understand the terms of the agreements. Later it may be impossible to persuade the partner to sign what he promised two years ago. And the court will not be able to force the partner to do this on the basis of an “agreement of agreement”.
I was saddened by the lawyer's answer: I hoped that such a way to delay the final signing of the contract would work. But in the end I listened to Robert.
This is difficult, but everything must be prescribed in the marriage contract, including situations related to the possible death of partners. Further, the spouses may decide to terminate the contract or make applications with additional conditions. But at the time of signing, the contract should be comprehensive.
Edits to the contract
The main amendments to the contract concerned my financial situation, if I did not work for some time during our marriage. We assumed that this situation is possible due to the birth of children and frequent relocations due to the work of her husband.
Here are the changes I made to the contract:
- In the event of a divorce, my husband pays me compensation if I do not work or work part-time.
- We set aside part of our salaries in the general budget if we work both. If only the husband works, he contributes more to the budget and allocates money for my personal expenses.
Before meeting with the lawyers, we had already discussed with Dan scenarios of divorce in a situation if I did not make money. But for some reason, one condition still fell into the contract, which seemed to me incomprehensible and controversial. In the first draft in the event of a divorce, I would receive 60% of all my income from salary certificates for the years of marriage. But this amount could not exceed 20% of Dan's earnings.
It was assumed that Dan would earn substantially more than me. The mirror condition that Dan would be out of work was absent.
Dan explained that his lawyer did not advise him to include such a condition in the contract: it could pose a financial risk for him and leaves a loophole for the court. Each lawyer protects his client. Therefore, it is important to have two independent lawyers and read the contract carefully.
The final version of the contract included the wording proposed by me and my lawyer. In the event of a divorce, Dan will pay me 6,25% of his salary for all the months in which I worked less than 40 hours a week, and 12,5% for the months when I did not work at all. There is no mirror condition for my husband in the contract. Now I think it would be fair to include it.
Even in the first version of the contract it was said that the salaries of the husband and wife are not common. It seemed to me and my lawyer that it was important to discuss issues of joint expenses when I would not work or would earn substantially less than my husband. It is difficult to discuss such conditions when you are just starting to lead a joint budget and live together, but we tried.
As a result, we agreed on the following. If we both work, then we transfer at least 35% of our salary after deduction of taxes to the joint account. From this amount we pay for food, medicine, household goods, minor repairs in the house, expenses for the child. If I do not work, the husband deposits 50% of the salary into the general account and transfers 12,5% to my account for my personal expenses.
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Mistakes in the preparation of the contract
During the preparation of the marriage contract, we also made many mistakes. Here are some of them.
The first draft of the contract was a model. I was upset by this version of the contract. He did not take into account the peculiarities of our financial situation, did not contain conditions in case one of the spouses did not work for some time after the birth of the child, and was written in a language that I could hardly understand. Now I see that it was our mistake. Before going to lawyers, we did not discuss the terms of the contract that were important to us. The lawyer could not come up with them for us, so we got a standard template.
Dan handed me a draft without explanation or discussion. And I did not find the courage to immediately ask him to explain important points.
Which is better. To compose your own version according to the model and write the main points in a non-legal language, so that the contract was easier to discuss. If the initiator of the contract is only one partner, he probably already has ideas on what should be in the document. It will be useful if the initiator draws up a short but understandable document for his partner with important conditions for him. Further, lawyers can add the necessary formal details.
It would help me if we read and discussed the draft together, and did not go straight to the lawyers. This would reduce the number of hours working with them, and we would spend less money.
One of the partners did not have money for his lawyer. The fact that one of the partners pays for all lawyers can limit the time to work with a lawyer and put a person who does not have money in a dependent situation. This did not affect me: I decided that I would work with a lawyer as much as I needed to understand all the details and conditions of the contract. Dan supported my decision.
Which is better. Discuss the possibility of a contract in advance so that both partners can find money for a lawyer. Now that I understand the process of signing a prenuptial agreement, I would rather postpone the wedding or save on it, but would pay for my lawyer myself.
The final version of the contract
A month and a half passed from the start of work on the contract to signing. The work of my lawyer cost 1500 $. Her husband’s lawyer was cheaper because he met with him only a couple of times. Our wedding took place a few months after we signed the marriage contract.
The contract was signed in the presence of two notaries - one for each party.
A prerequisite for a legal prenuptial agreement is an honest account of all assets and liabilities. They are listed in the appendix to the contract. For these purposes, you can hire an appraiser. We did not have many assets, therefore, in order to save money, we included in the contract a clause that we refuse the appraiser.
The agreement cannot include conditions for guardianship and financial support for children, but you can include the condition that you agree not to go to court if you still have difficulty sharing property. Our contract says that we will first turn to a mediator - a person who helps to resolve disputes between people without trial. His services may be cheaper than a lawyer, because there may be one mediator, and two lawyers in the USA are required. The goal of the mediator is to help each of the parties. It will help save time on trips to court and money, and also resolve the conflict is beneficial for both parties.
I uploaded the final version of our contract to Google-documents.
How the contract now affects our lives
While we are not going to get a divorce, therefore, we did not apply to the contract. My husband studies in residency, and I work part-time after the birth of my son. Therefore, our joint income is enough only for daily expenses.
We do not follow the distribution of income that is prescribed in the contract, because so far there is nothing to distribute. Both of our salaries go to a common bank account. We also have personal credit cards, on which we do not accumulate debts.
The contract makes me think more about my financial security. Our son 2,5 of the year. In five years of our life in the USA, we moved three times. Because of this, it was difficult for me to find a full-time job. Thoughts about money still cause me great concern.
When writing an article, I re-read some clauses of the contract and checked the documents, which may be useful for confirming our income. Payments in our contract are based on the W-2 forms in which the salary is indicated. Each year, the employer sends these forms, so that later the employee includes them in the tax return. I keep copies of these documents over the years of our life together, so that, if necessary, they are at hand. This may seem strange to someone, but after signing the marriage contract it doesn’t seem so to me: it is taking care of ourselves and our future.
If you decide on a prenuptial agreement
- Start a conversation about money long before discussing a marriage contract. Explain why it is important for you to sign a contract.
- Make a short document in human language for yourself, and then go to the lawyers. A prenuptial agreement is primarily an agreement between partners, and only then - legal subtleties.
- Hire lawyers and set aside time and money to consult with them.
- Actively participate in the discussion of the terms of the contract so as not to miss important details - they can seriously affect your life in a few years.