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Planning Financially to be Legally Bound

by Jared Newnam
February 8, 2013 South Source learns about the importance of financial planning before getting married.

Leading up to their big day, engaged couples spend a great deal of time making the guest list, finding the perfect dress, and choosing the right flowers, but the most important item on the pre-wedding checklist should always be financial planning for a future together.

Couples should understand they are creating a financial partnership when they get married, says John F. Schutz, marital and family law attorney at Schutz & White in West Palm Beach, Florida.

“Generally money earned and assets acquired during the marriage are marital,” Schutz says. “No longer is your income your own. Also if you have premarital assets, then certain actions such as retitling the asset or combining the asset with a marital asset may cause your premarital asset to become marital.”

Schutz says when assets are titled jointly, a legal presumption of gift and thus marital is created. When marital and non-marital money is placed in an account to the extent that the non-marital money cannot be traced, he says all money becomes marital.

Some assets such as a 401k, pensions, 403B, and Keogh plan cannot be retitled, he says, so in this case a written indication of gift may be sufficient.

If one spouse has a considerable amount of debt, Schutz says this should also be taken into consideration before entering into the marriage.

Schutz says the simple answer on whether spouses are legally obligated to disclose any financial problems before getting married is no.

“However, if the betrothed are entering into a prenuptial agreement certain advantages are derived if they exchange accurate financial disclosure,” he says. “Florida recently enacted the Uniform Premarital Agreement Act (UPAA). The UPAA specifically provides that financial disclosure is not required to create a binding prenuptial agreement.”

A prenuptial agreement is an effective tool for anyone possessing income or assets they wish to protect from distribution upon divorce

It is possible for a prenuptial agreement to be deemed invalid, through two different ways commonly called the direct and indirect method, he says.

“The direct method requires the person seeking to set aside the agreement to prove the agreement was the product of fraud, duress or coercion,” Schutz says. “The indirect method requires the person seeking to set aside the agreement to prove the agreement is unconscionable. If the agreement is deemed unconscionable, then the burden shifts to the other spouse to prove the agreement was only entered into after full and accurate financial disclosure was given.”

Therefore he says it is very rare to be legally required to disclose any financial issues before marriage.

Devising a Prenuptial Agreement and Estate Planning

“A prenuptial agreement is an effective tool for anyone possessing income or assets they wish to protect from distribution upon divorce,” Schutz says. “There are three situations which make prenuptial agreements more likely — second marriages, high net worth individuals, and children of wealthy parents.”

Schutz says people commonly have a prenuptial agreement before their second marriage as they often have children from their first marriage and wish to protect their rights to the estate of the parent with little interference from the divorce court. “An aspect of a prenuptial agreement often overlooked is the agreement protects assets not only in the event of divorce, but also in probate proceedings.”

Wealthy parents often encourage their children to enter into a prenuptial agreement before getting married to protect their future inheritance or lifetime giving in the event of divorce, Schutz says.

“Lastly, high net worth individuals often desire prenuptial agreements to protect more complicated financial dealings,” Schutz says. “For instance, a prenuptial agreement might control the distribution of assets, even if those assets would have been subject to distribution by the court in the event of divorce. Jointly titling of assets has potential estate planning benefits in the case of probate proceedings, but jointly titling of any asset during marriage also makes the asset presumptively marital and subject to distribution.”

Approaching the subject of a prenuptial agreement can be a dicey matter for some couples, so suggests beginning discussions long before the wedding day to give both people the proper amount time to think about it, without having to rush into things. The site says that in general, prenuptial agreements can be altered to accommodate any changes that need to be made during the course of the marriage.

Ideally, couples should also begin estate planning before marriage, Schutz says.

“Estate planning requires making decisions on what is important as a couple,” he says. “Being able to build consensus on these issues will only strengthen the relationship. Conversely, finding out you differ on major estate planning issues is equally valuable and better learned before the knot is tied.”

Schutz says estate planning is most important for couples who enjoy a certain lifestyle because of the distinctly higher earnings or assets of one spouse.

“If the spouse with means predeceases the other spouse, then care should be taken to secure an appropriate means of support for the survivor,” he says. “Also if children are born of the marriage, care should be taken to secure their future in the event of premature death.”

If the estate of a couple approaches or exceeds the estate tax exemption, which Schutz believes is $5,250,000 for the year 2013, he says it’s also very important to devise an agreement before getting married.

“Estate planning is important for everyone to consider, but these are a few of the more crucial times to start thinking about your family’s future,” Schutz says.

 “Frankly, my clients are generally more concerned with keeping assets separate than in combining them,” Schutz says.

“Sometime, however, there is an estate planning benefit to jointly titling assets. If the joint titling of assets is done for estate planning purposes, then this intent should be memorialized in writing and this may be sufficient to overcome the gift presumption created by the joint titling.”

Importance of Proper Premarital Financial Planning

Lisa J. B. Peterson, president, founder, and certified financial planner at Lantern Financial, works with couples to complete a premarital financial counseling process, to make sure they share the same views toward money. Money is the most important thing that people need to be talking about before getting married, she says.

People observe and absorb their family’s financial habits, Peterson says. As a result, she says couples may have very different views on how to manage money.

“Couples should pull their credit reports together before they get married,” Peterson says. “If you’re not pulling your credit report, you’re not seeing the truth as the world sees your partner.”

Peterson says couples need to talk about their values and set goals around those values.

“Typically when people are getting married it’s earlier on in their adult life, so they have limited resources,” Peterson says. “You want to make sure that when you’re making sacrifices, that you’re building a financial life that’s going to be enjoyable.”

She advises her clients to decide what their financial goals are and then figure out how they can achieve them. When working to combine financial assets, Peterson recommends that couples have one primary checking account, but that each person also should have an individual account.

“Put all money into the joint checking account each month, create a budget, figure out what things are joint expenses and which things are individual expenses,” Peterson says. “Things on the side should be just fun spending money, gifts for each other, and things that you just don’t want to answer to on a daily basis. Decide on an equal dollar amount that goes automatically into the other account.”

She says for the most part, all savings accounts should be joint venture.

Tags: prenuptial agreement financial planning financial advisor estate planning

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