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230. What Can and Can't be Included in a Prenup
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In this episode of A Wiser Retirement®, Casey Smith and Missie Beach, CFP®, CDFA®, talk with Leslie O'Neal, a Family Law Attorney and Partner at O'Dell and O'Neal in Marietta, GA. They discuss why prenups are important for everyone, especially in second marriages, and how they act as practical life planning tools like insurance. The conversation covers the need for legal drafting of prenups, the challenges across state lines, and essential tips for anyone getting married.
Related Podcast Episodes:
- Ep 183: How to Avoid Financial Conflict in Marriage
- Ep 160: How Finances Affect Divorce
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- What is a Certified Divorce Financial Analyst®?
- Can joint bank accounts prevent marital conflict?
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- How to Differentiate between Marital and Non-Marital Assets
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Discussing Prenups in Second Marriages
Speaker 1you need to first decide. Is this going to be a non-negotiable for me? Because if it is, you might want to bring it up before you even get engaged. If you're particularly if you're the man and you're the one that's going to, you know, extend the proposal of marriage. If it's required for you to marry that that person signed a prenup, you might want to go ahead and have the discussion before you even propose.
Speaker 2Yes, Okay, the storyline for a second marriage is to me a lot easier. It's like I've come out of this poor marriage and this is what I'm concerned about, and if we want to take this step further, I need some assurances, and this document has it. I think it's harder for the first marriage.
Speaker 3Right, but that's a good point, leslie, that, yeah, do that before you even get engaged and you're talking about these important life topics Correct.
Speaker 2Welcome to a Wiser Retirement Podcast, where we believe the best financial advice should always be conflict-free. I'm your host, Casey Smith. Guiding you to financial freedom today are my two co-hosts, Missy Beach and Leslie O'Neill. Hello.
Speaker 1Good morning, Leslie.
Speaker 2this is your second appearance on A Wise Retirement A seasoned veteran. A seasoned veteran, I don't know. I want to say a divorce attorney or partner.
Speaker 1Family law sounds fluffier.
Speaker 2Family law.
Speaker 1Euphemism Come on.
Speaker 2I know right. Partner at Oell and O'Neill in Marietta, just up the street from Weiser Global Headquarters. You've worked with several of our clients and you've done a great job, so that's why we keep inviting you back.
Speaker 1Thank you. Thank you for having me. I enjoy being here.
Speaker 2All right, so let's talk about prenup.
Speaker 1B. All right, so let's talk about prenup Bum, bum, bum. I feel like this is a topic.
Speaker 2This has come up quite a bit in some of our client meetings recently.
Speaker 3Which is good, which I feel like has never been talked about before.
Speaker 2Actually in two ways One that's already been signed and then in another case, one that's being, should I be doing this? So, yeah, that's actually a friend of mine she's going to get, might get remarried. I mentioned that to him too.
Speaker 3That he should. He should Absolutely.
Speaker 2They're both successful, but it's not a bad thing Draw a line of sand.
Speaker 1Establishes some clarity, so different than a business partnership.
Speaker 2If I made the worst decision ever to merge with this company, how do?
Speaker 1I exit stage left.
Speaker 2How do I?
Speaker 3reset where there's no harm. Yeah, so, leslie, do you think that more people go into a second marriage with a prenup versus a first marriage with a prenup?
Speaker 1Absolutely Just. I mean, for obvious reasons, when you're going into a second marriage, it means your first marriage generally means your first marriage failed for whatever reason, unless somebody you know died or or or something like that. Um, so generally it's just a scenario where you've already been through a divorce once you, you kind of know what to expect in terms of not everything is going to be agreed upon. Um, it's not going to be easy. It could be expensive. So I do. I do think I would say, more often than not, second marriages. The prenup, whether they actually executed or not, is another story, but it's a conversation topic for sure.
Speaker 2I would add or add a question there age.
Speaker 3Oh, yeah, yeah.
Speaker 2Because the first one in your twenties.
Speaker 1You got nothing right, you have nothing, you don't have assets.
Speaker 2You don't have kids, but maybe in your mid-30s, if you've been career focused, maybe it comes up more.
Speaker 1Absolutely, absolutely.
Speaker 2So maybe it's not a second marriage thing, it's more of an age thing Age and maturity too.
Speaker 1Yeah, just being willing to have harder discussions when you're right, you have more assets to protect at that point.
Speaker 2Right, and even if you are married I'll throw this in there Even if you are married and you have that inheritance much later, yes, just don't put that those assets into joint.
Speaker 3Correct.
Speaker 2Exactly.
Speaker 1That's a big one.
Speaker 2Keep those inherited dollars in separate accounts without the other person Own built in prenup with having to sign nothing. Exactly. There's a lot of things you can do that don't even require a prenup to protect your assets.
Speaker 3And I feel like that's a conversation that we have with a lot of clients is, you know, when they're talking about how they want to leave their assets to their kids that are adults and they're like, oh yeah, we'll just leave it outright. Well, maybe you don't want to leave it outright to kids, maybe you want to leave it in, you know, a testamentary trust so you can still control those purse strings from the grave. And you know, keep it separate and not allow it to go out into your kid's individual name and then a joint account and somehow you know, sure, everything's great until it's not.
Speaker 2That's what reminds me of my, my good friend, gary Kitchen. He passed away in 2020, miss Gary, but we were at the Married to Country Club and I made this putt. It was like it was going to go in the hole from a long ways away and it just rolled up to the edge and stopped Crushing.
Speaker 1Crushing.
Speaker 3Did it kill Gary.
Speaker 1No.
Speaker 2Oh, he said that's the son-in-law putt. And I said what do you mean? He goes. It came up shorter than your expectations, so that's that's why you would do that.
Speaker 1We were talking about leaving in a, in a trust, as opposed to just outright gifts.
Speaker 3Da daughter and sons-in-law can't get their grubby hands on your money, right yes, because you don't want to be those in-laws who are trying to change the layout of things once your kids are already married right, because that's where things you don't want to seem controlling while you're being controlling.
Speaker 5Exactly Leslie, because I've seen that in real life.
Speaker 3Optics are everything, and that creates very painful situations for all those involved when they're trying to do that after the fact.
Speaker 2So when we start with the basics for people who are just trying to figure this out, okay, so what is a prenup?
Speaker 1Okay, well, a prenup, in its simplest terms, is a contract that two people that intend to get married enter into in order to address how they, in the in the unlikely or an unfortunate event of a divorce, address how their assets and property interests are going to be divided, as how their debts will be divided, address spousal support, business interests, inheritance rights, those sorts of things. So it's at its simplest, at its core. It's a contract.
Speaker 2So what's included inside that contract typically?
Speaker 1So, generally what I just described, I mean property rights most people just want to protect their money. I mean, that's what the goal is, whether their money is invested in real estate, invested in businesses, invested in financial accounts. That's usually the goal. Going in is I want to make sure my money is protected and that in the event of a divorce, we kind of already have a fair outlook on how all of those assets are going to be divided, if at all. So that's generally what's covered spousal support as well as covered.
Speaker 1Often we get questions about custody and visitation and child support, and I think most people by now know but not everyone that those things cannot be included in a prenup for a couple of reasons. Number one they impact the rights of third parties, which are the children involved. So those rights have to be reviewed and approved by a judge. Whether there's a prenup or not, judges review and approve, review or reject agreements that address children's rights and child support. So that cannot be included. And the other reason is that those determinations have to be made at the time that the divorce is occurring. So you can't decide now what's in your child's best interest 20 years from now, for a child that doesn't even exist yet. So it's too speculative anyway. So those things can't be covered, but pretty much anything else is fair game, um, in terms of trying to to cover what, what's going to happen in the event of a divorce, with all of those assets and debts and um support needs.
Speaker 2So some of this gets sensationalized by celebrity. Hollywood but, you know, for everyday people is it common to have the exit strategy in there, cause a lot of times you'll you hear or you find out after the fact that movie star X got divorced and he or she married someone that wasn't as famous and they get a million dollars a year for the rest of their life.
Speaker 1If this, if this marriage is, if they lasted more than 10 years. Exactly what a goal I know God it just make it to that 10 years exactly what a goal I know, gotta just make it to that 10-year mark when you're set I don't know.
Speaker 2I've seen some of these 80 year olds with 35 year old girlfriends. You kind of wonder if there's not an agreement in there somewhere um, I I haven't seen a lot of those.
Speaker 1I guess we just have like regular folks here in georgia. Nothing too, I have not. I've heard about the sensational pre-ups with um, you know, I mean just outrageous things Like if as long you've got to maintain a certain weight in order to get Alamo. I mean like it's crazy, crazy stuff. I wish I had seen one of those.
Speaker 1It'd be juicy but no, I mean most of the time people have really good intentions, um, and the goal is just to do fair things and to make sure that the fair intentions going into the marriage are carried out in the event of a divorce. So I haven't seen a lot of the crazy stuff. I've heard about it, though.
Navigating the Prenup Conversation
Speaker 2Okay. So how do you even start the conversation with someone about this?
Speaker 3Very very delicately.
Speaker 2They just bring them down to your office and say she wants to tell you something.
Speaker 1Talk to Leslie. It's a very awkward topic, to be honest. I mean it is quite awkward. Usually one person comes to meet with me privately and the other side sort of has an idea that the prenup is. Usually they've said yeah, I've already talked to so-and-so about it and they know it's coming. They don't know what it necessarily is going to say, but they know it's coming, so, um, I they usually have already had that discussion. I have not yet also had this situation where someone asks for a prenup and the other person just sort of hysterically refuses oh really, yeah, that's good.
Speaker 1Maybe, those just don't make it to your desk.
Speaker 4They don't make it to the altar, I guess. Oh yeah, maybe that they're not getting married it dissolves, exactly, exactly.
Speaker 1But, believe it or not, people are pretty adult-like about it. So far that I've seen, I've been surprised by that. To be honest with you, because it can be a mutually beneficial document it doesn't have to be drastically one-sided. It's an awkward document because it's preparing for something that you're going into a marriage saying I'm going to love and honor and cherish you for the rest of our lives.
Speaker 1Oh, but sign this prenup here, just in case that turns out to not be true, but at the end of the day, it's a life planning type of document. It's like insurance, you know, and so if you approach it that way and are a little business, more business-like about it, it can be a very valuable tool in the planning of your life.
Speaker 2Yeah.
Speaker 3Well, you sign a will and it's not like you want to die.
Speaker 1It's a very good way to a very good way to put it. True, but everyone will die, yeah, whereas the goal is to not get divorced Right, yeah, but you sign a healthcare directive.
Speaker 3You hope you're never going to be incapacitated, okay.
Speaker 1How about that?
Speaker 3one.
Speaker 2Yeah, that's better.
Speaker 1That's better, I think. The bringing up of the topic, obviously, you know, I think you need to first decide. Is this going to be a non-negotiable for me? Because if it is, you might want to bring it up before you even get engaged, particularly if you're the man and you're the one that's going to, you know, extend the proposal of marriage. If it's required for you to marry, that that person signed a prenup, you might want to go ahead and have the discussion before you even propose.
Speaker 2Yes, Okay, the storyline for a second marriage is to me a lot easier. It's like I've come out of this poor marriage and this is what I'm concerned about, and if we want to take this step further, I need some assurances, and this document has it. I think it's harder for the first marriage.
Speaker 3Right, but that's a good point, leslie, that, yeah, do that before you even get engaged and you're talking about these important life topics.
Speaker 1Correct, and that way you're not in some awkward scenario where she's got a ring on her finger that you just spent a whole bunch of money on, and we've got a wedding date and contracts with vendors that have been, and then you're having the and then you're kind of saying, oh well, this is sort of mandatory for me, you know. I'm not going to go forward with the wedding, and that's when you get into these sort of duress situations where she feels forced and you know um.
Speaker 2But she's already. She's already he or she. She, in my example, I guess, has already told everyone how excited she's about the marriage. And then here comes the drama.
Speaker 5If it's ever being challenged down the road.
Speaker 1well, I felt like I had to sign it because I had already announced to everyone we were getting married and that would be humiliating, so I didn't really feel like I had a choice.
Speaker 1So, I just really think, right out of the gate, before you even explore engagement, I would go ahead and just and just feel the other personnel and make sure that that would be something they were, are open to, and if they say, no, I'm not open to that, then you need to evaluate whether you want to. You know, get engaged in the first place and just you know yeah, nobody has to get married. Yeah, Talk to your young adult kids.
Speaker 1Um so, and then another way to bring it up, particularly on a second marriage scenario, is, if you have children, you can kind of blame it on them and just say you know what? I've got children I have to think about. This is their money one day too, in my mind, and so I want to make sure that everything is just really clear for everyone's sake. That's smart, Not unfair, just clear and predictable for all of us.
Speaker 2How do you think that you focus the document on fairness?
Speaker 1It depends. I mean it's really a case by case basis. I mean, I think if you've got a situation where one side and we hear about these scenarios usually if it's really mutually beneficial throughout the marriage, nobody's going to seek to set it aside. If it's really mutually beneficial throughout the marriage, nobody's going to seek to set it aside. It's just going to govern the divorce and we're all going to follow it and that's going to be that.
Speaker 1It's the scenarios where there's this gross disparity in incomes or gross disparity in assets. And so I think you just address that If you're a very wealthy person and you're marrying someone who's not that wealthy, um, and you're going to be married for a long period of time maybe, and you're going to be clear that anything in my name is going to stay mine, even if it was earned during the marriage, then maybe you do put a you know, a little bit of spousal support in there, um, and if certain terms are met or the length of the marriage extends a certain amount of time, just so that that person isn't left high and dry, if you know you're going to be keeping all of this money, you know. And so, like I said, it's a case by case scenario and it depends on the financial circumstances of the parties.
Speaker 2But as an attorney, though, so I can only relate it to like business law, right? So if you're negotiating, you put everything you want into a, an agreement, you pass it to the other side, right, and if they're willing to sign it, then they signed it.
Speaker 1Yeah.
Speaker 2If you pass the other side and they go like hey, these are five things that you're trying to screw me. You know they're like well, we can negotiate that, and you negotiate things off, getting back to where it is that you really wanted to be. To me that seems very dangerous. To do a prenup that way where you just put everything in and you pass it across the table. I mean you're having an arm's length negotiation with someone you love, you can only represent one person. Yes, correct?
Speaker 1Correct and actually it's wiser to have two lawyers representing the two parties. See how I did that. So it's wise to have two lawyers representing the two parties. See how I did that. So it's wise to have two lawyers involved that are negotiating and advising their clients, but it is an awkward negotiation because these two people are meanwhile. They're like oh, we just came back from the, you know the, the wedding website, I mean the wedding venue, and you know the tasting for the, and now we're going to negotiate alimony.
Speaker 2And you're like taste this.
Speaker 1Yeah, exactly. So it can be quite awkward, but yeah, I mean, you can hardball negotiate, but you also have to recognize the delicacy of the situation is that you're negotiating for folks. So I'm usually very, you know, I stay in constant communication with my client. Now is this going to offend them? Do we want to just be clear? We just aren't trying to start high and you start low and have some strategy. Yeah, you know, we're just trying to be fair and honest and upfront and transparent, and so you know, I think having two lawyers that are are also have that understanding too.
Speaker 2We're not here to we're not here for blood, we just want to get a nice fair agreement. If you're the party being asked to sign a prenup, I would say it's probably good to have pay for a couple hours of someone's time to review the docket document to make sure there's not any gotchas.
Speaker 1Absolutely, and in fact, if, if the you know higher income earner or the wealthier of the two comes to see us, we we will advise them. She, the other person usually is, but not always needs to have his or her own independent lawyer look over it, even if you have to pay for it.
Speaker 1you know and pay the fee that lawyer will represent your future spouse and then the lawyers will do an affidavit. If it's going to be a really solid prenup, the lawyers will do an affidavit that I independently, you know, met with so-and-so and reviewed this document with them and so that there's so that both parties were clearly represented by council. So that's, that's an important step.
Speaker 2I think what I've seen has been parents with children, with grown children that are, that have an estate strategy, which is which is a lot of gifting 200,000 a year for many years. They're the ones that say you need to get a prenup. So it's not so much in your world. You see, statistically right, the man has X amount of assets. He's remarrying someone who doesn't have that. But I think in our world we're seeing a little bit different. Where it's, it's, uh, grandparents that are insisting.
Speaker 2Yeah, because they're like we're near the exclusion and we have 2026 coming where my exclusion gets cut in half and so I have to start gifting millions of dollars over these time period. But they're worried about. Well, they seem happy, but what if they're not happy?
Speaker 1Right and ultimately the child can keep that inheritance in a separate account. But you can't always trust your kids to do the same thing, Exactly, exactly.
Speaker 3They just forget, or brain?
Speaker 1fog or just want to go buy a. Oh, this lake house is on the market.
Speaker 5And they put it in a joint title Exactly Use their inheritance to purchase it.
Speaker 1So, yeah, that's a, that's a, that's a real concern, and so prenup would help, would certainly help um address, you know, inherit inheritance that was used for um for for joint marital things.
Speaker 2Right, but you have to have kids that cooperate and actually get the document done. But yeah, that's interesting.
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Speaker 2So yeah, I mean, once we get through that, so we've got the document signed Do we file this in the court anywhere, or is it just kind of live?
Avoiding Mistakes in Prenuptial Agreements
Speaker 1You can. I mean it'll generally be reviewed and evaluated and enforced, if the court enforces it, regardless of whether it was filed. But it does not hurt to file it. It's probably a best practice to file it in the county where the marriage is going to take place or where the couple is going to reside. So I mean generally, that's the best approach I have. I have had a situation where it was a a couple. The gentleman had a lot of money and signed a prenup with his soon to be wife. They got married. He just stuck it in a filing cabinet and turns out it went missing when it was time to get divorced.
Speaker 420 years later, and I don't- have it, I lost my copy I don't
Speaker 1have my copy, and his lawyer had long since passed away the lawyer that had drawn up the prenup. So I mean it actually was a case that went all the way to the Supreme Court because he was not going to stand for it. I mean he was very, very upset about the fact that she had clearly signed the prenup and she knew what it said. And she was admitting that there was a prenup but she couldn't quite remember what it said. And so that's step one Keep your prenup, keep a copy of it.
Speaker 5Um, make sure you have it.
Speaker 1Make sure, yeah, keeping a digital copy all of that, so that, um, so that it doesn't mysteriously go missing.
Speaker 2So okay, so we created a prenup when or why, or maybe both, I guess, would you change it?
Speaker 1You know, circumstances change, things change. Somebody goes and has an affair, you know and once it comes crawling, don't leave me, don't leave me oh okay. Well then, let's sign.
Speaker 2At that point it would be a post-nup, yeah.
Speaker 1But you can do a post-nup and I've seen that happen. We've had a case where there was a prenup. They got married, husband had an affair, wife was pregnant when she found out that he had had an affair and um and so he begged, begged, begged, and there were some terms and conditions for her to take him back, and it was. You know, we're going to do a post-snap and we're going to change some things because they had a prenup already.
Speaker 2Yes, okay.
Speaker 1Yes. So you know, circumstances change and that would be the reason to revise the post-nup. But usually there's got to be some incentive. That's why I mentioned that scenario. The incentive to sign a prenup is okay, we're not getting married if this doesn't get signed Right. So I want to get married, so I need to go ahead and get this prenup signed, or else you know, the wedding's not going to happen. So there's a little bit of incentive and a deadline, so to speak, that keeps things moving. The postnup generally. I see those scenarios where somebody, there is a I'm either getting divorced or you're signing this postnup. Okay, that sort of incentive. People generally don't just bring up postnups and revising prenups out of nowhere. There's usually some incentivized event that, um, that forces the issue a little bit.
Speaker 2Yeah, post-nup makes sense because the assets are going to be a lot different at that point versus um. At the beginning, yeah, um, and then? What is the process of doing that?
Speaker 1You know it's going to be the same as a pre-nup it doesn't get approved by anybody.
Speaker 2It's just what you two parties agreed to.
Speaker 1Correct. Correct I mean anytime you're doing a prenup or a postnup, I highly recommend having a lawyer draft it. Don't get the legal Zoom documents, believe it or not. I've seen that. I had a client consult with me and they did a prenup on legal Zoom and it wasn't a poorly drafted document. It just didn't have two witnesses, which is a very simple requirement of a prenup in. Georgia, for instance.
Speaker 2How do they not know that stuff?
Speaker 1Right, you would think. I mean I guess it was legal zoom for the entire country and and there's a lot of states that follow a uniform prenuptial agreement act.
Speaker 1Georgia does not follow that act, so we are on our own, so to speak, in terms of how we handle prenups. We do require two witnesses, one of whom has to be a notary, so it has to be a notarized signature with an extra witness for both parties. So that was an example where they just did the legal Zoom document. It didn't have a basic fundamental requirement, so it was. I mean, you can't even argue to enforce it because it's so unenforceable. Just use an attorney.
Speaker 1Yes, so, it's step one, use an attorney. And then the other standard rules apply to both a prenup and a postnup. You need to list out all of your assets, so there needs to be a full and fair disclosure of assets. So generally I have people prepare an asset list. They usually aren't detailed enough and I make them add more detail. Let's do last four digits of bank accounts, let's use most recent value, the date that we are valuing each account, so forth. So it's very, very clear what the assets are. That's a requirement for a prenup.
Speaker 1And then there obviously has to be no fraud, duress or mistake in the document itself. And those are the times you hear about oh, we had to sign this prenup the day before the wedding, or something like that, and that's the scenario I mentioned earlier. Maybe talk about it before you even get engaged, because otherwise you're going to be in that scenario where you're at the rehearsal dinner signing a prenup and those are the ones that get challenged rehearsal dinner signing a prenup. So and those are the ones that get challenged. I mean, quite often you know you're you really need to have a reasonable amount of time before the wedding that the document is signed to avoid a claim that there was duress involved in the signing of the document. Um, I would say all those same general rules apply with post-nups. Obviously, there's no follow-up wedding unless you're getting your vows renewed or something. But uh, but other than that you need.
Speaker 2It needs to be very clear unambiguous outline everyone's financial interests, so everyone knows what they're signing. But getting vows renewed, is that a? Is that?
Speaker 1a legal thing.
Speaker 2I don't think so.
Speaker 1It's like a ceremonial thing right Correct there's no legality to a vow renewal.
Speaker 4You're right, it doesn't change anyone's rights.
Speaker 1Once, you're, once you're married, you're married, okay.
Speaker 2So it doesn't change anyone's rights Once you're married, you're married, okay. So we're kind of on that path there for a second. So what are some common mistakes to avoid when doing this? I keep seeing a theme here unequal bargaining power.
Speaker 1But isn't that?
Speaker 2the whole point of a prenup.
Speaker 1Well, bargaining power and just positions are two different things. I think, if you've got two lawyers, you've got equal bargaining power. You've got two lawyers that are representing your interests. So it's not an uneven playing field, so to speak. Everyone is well represented. That's why I suggest if you're the financially inferior person, pay for the other person to have a lawyer that you're not in communication with. Make sure that that lawyer knows they represent your future spouse.
Speaker 1And that person has a quality legal counsel to advise them. So that's even bargaining power, so to speak. But prenups are often they're not going to leave people in the same exact situation. They're not going to leave people with the same amount of money departing a divorce, and that's not really the goal. And although unconscionability is a reason to set aside a prenup something that is so grossly unfair that the court just cannot in good conscience enforce it, that very, very rarely happens. I mean, it's expected that it's not going to necessarily allow one spouse leaving the marriage to just be set financially. That's not the point of a prenup. To your point.
Speaker 3Is it an issue if the higher earning spouse you know is paying for the lower earning spouse's attorney and selects that attorney for her?
Speaker 1No, because any good attorney will have a contract with the client directly. I have people that have family members and so forth pay for my services, but that person is not my client. The person that paid for the services is not my client. My client is the person that signs the contract. So most attorneys are pretty good about maintaining that separation. And so I guess back to the point of optics. Maybe it's not perfect optics, but I don't see a problem with it If you say, look, I made sure she had a lawyer. She didn't have the funds to pay for lawyers, so I paid for her lawyer. I didn't have any contact with that person. That person contracted with her as the client. I made sure their bills were paid, that's it. And she still, even though I put her in touch with this person, she still had to select the person and sign the contract with that person.
Speaker 3It's up to her to vet that attorney and she put her signature on the contract. So that could not be. I don't think that would be.
Speaker 1I wouldn't be surprised if somebody made that argument as a Hail Mary. I've seen crazier Hail Mary arguments made, but I don't think that would be a successful way to set aside a dog.
Speaker 3That's pretty secure, okay, yes.
Speaker 2So when it comes to state laws, obviously you probably shouldn't be consulting your girlfriend or guy friend. Or the internet or the internet right About how to deal with this. So what makes you mentioned the signature earlier? But what would make Georgia unique for a prenup and does? It matter if you got married in Alabama and you moved to Georgia?
Speaker 1So that's, interesting. I mean, those are always sticky scenarios, because I have one right now where they were married in Alabama and you moved to Georgia. So that's interesting. I mean those are always sticky scenarios because I have one right now where they were married in Switzerland and husband is a Swiss resident and a lawyer, wife is-.
Speaker 2But they're independent.
Speaker 1Meaning.
Speaker 2Switzerland? Isn't that like an independent?
Speaker 3company. Oh yeah, neutral, yeah, just yes, oh, that was a joke.
Speaker 1Okay, I joke, sorry, dry humor over here. So anyway, I have one, and they signed a prenup in Switzerland and it's. It is written out in French and it is um, apparently, according to the document, governed by Swiss law. But they live in Georgia and they're getting divorced in Georgia. So we're we're seeking to set it aside because she, my client, doesn't even speak French, so she couldn't obviously even read the document. But I mean, we're getting a French lawyer to consult with us or, excuse me, a Swiss lawyer to consult with us about whether this document, under Swiss law, would even be valid, even if she could have read it.
Speaker 2So it does create some oh, you think he like, compared he. He created this himself.
Speaker 1Yeah, I do, cause he's an attorney in Switzerland, I think that's the worst thing, right?
Speaker 2Yeah, attorneys can do yeah.
Speaker 1That's unwise, Um so yeah. So I mean you generally, if, if you're asking you, if the document says okay, we're getting married in Wisconsin and this is governed by Wisconsin law, and then the they moved to Georgia and then you're getting divorced in Georgia.
Speaker 1It does create some challenges with asking a Georgia judge to enforce Wisconsin law and so you have to I mean find some workarounds. Usually everyone can kind of generally agree okay, this is what the requirements are in Wisconsin, this is what the law is in Wisconsin. I'm using that as a hypothetical state and a lot of times it's comparable.
Speaker 1It's concepts that we all can follow and understand. So but yeah, that that. But you also can't predict where you're going to end up getting divorced. Although I do have a current client, believe it or not, that they're getting married in a different state. They plan on living in a different state for the first few years of the marriage, but both of their families are in Georgia, so they know they're going to end up in Georgia when they have a family and whatnot.
Speaker 2So they're going to go ahead and have a Georgia lawyer draw up the prenup, even though they don't live here, but would a Georgia judge throw out a Wisconsin prenup because it wasn't done in Georgia, the Georgia way?
Speaker 1No no. If, the if the document itself says it's governed by Wisconsin law and and Wisconsin doesn't require two, two witnesses, they only require one witness, you know, and it only has one witness. There, I mean, the Georgia judge is likely to apply the Wisconsin law because that's what the contract says, and that's what the contract requires.
Speaker 2So to get out of that would be difficult. So just get two witnesses and a notary for everything.
Speaker 1Just get three witnesses Just extra standby witness. Okay.
Speaker 2Interesting.
Speaker 3Yeah.
Speaker 2Um, so what? What happens when children are born after you've had a prenup?
Speaker 1Nothing really. I mean the doc, like I said, it's not going to say anything about the children, or it can't. So if it does, it's invalid. So so nothing really changes with respect to the prenup when children come along.
Speaker 2You have a prenup is protecting certain assets, but you're still going to go through the court system on how to pay child support and alimony can still be a thing.
Speaker 1Yes, Prenups don't absolve you of the legal system, really, I mean sometimes they can make it harder believe it or not? I mean, I have my case where, with the Swiss prenup, where now they're fighting over whether this is going to even be enforced and we're hiring Swiss lawyers to consult with us. So, um, I mean. I'm sure that's really cheap and super simple because they speak perfect English.
Speaker 2But um can you pay them in Bitcoin, so you get away from the conversion.
Speaker 1So I mean it doesn't always. It doesn't always solve every problem and avoid every pitfall it can. It can often create more problems. So I would also. I have advised people sometimes I don't know that you necessarily need a prenup, because it creates scenarios where now you're having a whole separate fight at the beginning of the case about whether we're even going to enforce the prenup if someone wants to set it aside, and then so the entire first five months of the lawsuit just are addressing that. So there are times when you know if, if two people make this about the same amount of money, and and a lot of times when they tell me their goals, I'll say, well, that's what Georgia law is already, you know they. They say, well, I want to make sure I keep what, what I have going into the marriage, um, but anything we are during the marriage is, you know, fair game, and I'm like, well, that's already what the law says it's how you title things, though.
Speaker 2Yes, if you title it as joint, you've got a problem.
Speaker 1Well, under Georgia law, if you just don't have a prenup, the law is, with respect to assets, anything you have going into the marriage, so long as you can prove what it was. You need a bank statement or something from about the time that you got married so that can be a reason to get a prenup, just to at least establish what the baseline was at the time of the marriage. But Georgia law is going into the marriage. What you owned before the marriage is your premarital property. Anything that that money earned through market forces or whatever is still premarital because it's not through a marital effort. But any assets earned during the marriage are subject to equitable division, not necessarily equal division.
Speaker 1It's totally different. So fair that equitable just means fair. Judges can divide it however they want, which creates a little level of unpredictability. In Georgia we're not a 50-50 state, although most people think that. So I mean, that's really what now? If you take that premarital asset let's say you have a house, that you go into the marriage and it's in your name and then you go put it in your spouse's name during the marriage, that creates a presumption that you've now gifted your premarital property to the marriage.
Speaker 1So that's kind of what you're referring to. So if you want to avoid those types of things, I still think it's wise to go see a lawyer and make sure you say, okay, this is what my goals are, and then I can evaluate. Okay, I think you really can accomplish that without a prenup. I just would say make sure you save all your statements from the month you got married to show what was in your investment accounts.
Speaker 1A prenup would be better, but if it's going to be an awkward topic or if they're going to resist it and we can accomplish it and skin the cat a different way every now and then, that would be my recommendation.
Speaker 2Something I run into. We joked a minute ago about it's 24, everything goes right. But you have a situation where a woman a client owns a home and she's been dating a guy for a while and now he's going to move in but he's going to start paying half the mortgage and I've always advised against that. I'm like no, no, no, no, you need to pay your own mortgage. Maybe he pays you. You can call it rent or something. Yeah, but that's commingling of an asset.
Speaker 2At that point, Well cause he's putting principal down on that, on that, on that asset. If it goes on for three, years, they never get married or they get married. Then there's divorce later. It just to me it's not real clean.
Speaker 1Yes, I agree, I agree with that, I mean all the assets separate, you know. Yeah, and? And even though he's not on the title and they're not married, there can be an equitable partitioning, what we call um, and he can make an equitable claim to some of that property interest. If he was making payments towards the mortgage, whether he'd be successful or not, it's a different story, but there's a legal claim to be made.
Speaker 3There's a door that's that opens the door exactly, in that case, exactly pay the utilities. Yes, there you go.
Speaker 1That's a good idea yeah, do the grocery bill yeah or get, or get married and get a prenup or yeah, yeah, go see, leslie, come see me get the pretty nice ironclad prenup. Then go get married. There you go exactly, exactly, um.
Speaker 2Or in other case you know we have where a woman moves in with man but she sold her house and she was going to take that money and she could just pay off his and they wouldn't have a mortgage together.
Speaker 1And I'm just like no anytime you're doing these huge financial transactions with a lawyer first for sure, let's not do that, yet let's pay off his house. That's in his name alone.
Speaker 2What a great idea all right, what could go wrong?
Speaker 3what could go wrong? Remember the golden bachelor did not work out. Oh really, yeah, that they didn't make it past like shocked four months or something what are we talking about?
Speaker 1the bachelor you know there used to be the bachelor of the tv show and now it's the golden Bachelor.
Speaker 2What is the Golden Bachelor?
Speaker 3He was like 70. What? And that marriage did not last, so I think that should take away.
Speaker 2Because he married a 30-year-old.
Speaker 1No, he married like another 70-year-old, 55 and up.
Speaker 2Oh, like it's his golden years.
Speaker 1Yes.
Speaker 3There you go. So they didn't want to say, like gray haired bachelor, so it was golden.
Speaker 2The old guy.
Speaker 3So I think they must have had a prenup and so it was okay Paid for by the show. Yeah, I'm sure. But that's just kind of a warning thing that these things seem all great and wonderful one day and then five months later they're not.
Speaker 1That's the problem is you know, later in life you are, the more set in your ways you become, the more you know chatter you have from kids and relatives. And so you know those marriages. You know there's more challenges involved in some of those Blending lives is hard when you're 70.
Speaker 3Exactly.
Speaker 1It's hard when you're 30. It's hard any time.
Speaker 2Yeah, when you've got more money involved, more people involved. It's just more hurdles. A golden bachelor show.
Speaker 1I'm still on that, I know. I know You'll have to Google that the bachelor is never going away.
Speaker 3You guys have all this free time to watch TV? I don't understand. We don't necessarily watch all the time.
Speaker 1Oh yeah, there's just no pop culture. No things that are happening, just paying attention.
Speaker 3Yeah, got it, I'm glad I have you guys. It's not all business. It's not all business. Podcast.
Speaker 2Yeah, I know, I didn't know about the Golden Bachelor until just now.
Speaker 1That's true.
Speaker 2I am now caught up for pop culture.
Speaker 1Well, the Bachelor's been around for what? 25 years? Oh, I remember that when I was in college.
Speaker 2I flew. His name was Jake and Jake was one, jake Pavelka, yes.
Speaker 1Oh, yeah, oh yeah, I'm a historian of the Bachelor.
Speaker 2Oh yes, oh he had that Let me put you in touch with Jake oh yeah, and they did the On the Wings of Love.
Speaker 1That song was the theme song of his year.
Speaker 3And he picked that very volatile woman. Vienna, that's it. You're welcome, you're good.
Speaker 2I did not watch any episodes, but I would hear all the flight attendants talking about it because it was all the rage, right, yeah. And it was funny. I remember climbing in the seat at like 530 in the morning getting ready for a flight and the first officer was like she was like all about Jake and the Bachelor and everything, and evidently there was an episode where he was standing on the side at this airport somewhere.
Speaker 5He's like.
Speaker 2I can fly any plane out here, and she was all disgruntled because that's not how that works. Don't be a liar they all have wings and engines, right, that's a real thing, but you have to have what's called a type rating. You have to go to class to fly the airplane for several months. You just can't hop from a 7.4 to a 7.5 or whatever.
Speaker 2She's like that whole show's made up. I know it is Cause he can't. We know he can't fly, you know. No, it is because we know he can't fight, and you're like you know what, you cracked the code. Really it's not all real. I don't think it's that literal, but yes, she was all upset about that. She found a flaw.
Speaker 3Yeah, Imagine that. Oh prenups to the Bachelor. You know what?
Speaker 1I feel like that's a natural segue. That's a natural segue.
Speaker 2Exactly All right. Natural segue Exactly All right. Well, thanks for listening to today's episode. You get a pop culture bonus at the end there If you're a word out of tune, just like me. If you're interested in learning more about Weiser Wealth Management, you can schedule a consultation, meet one of our fiduciary financial advisors by going to WeiserInvestorcom. You can go see Leslie at.
Speaker 1Odell O'Neill, hungerford and Blanchard.
Speaker 2Or just Google her name. That's what I do 770-405-0164. There you go, or the phone number. We have a couple more episodes on marriage and money and conflict Episode 183, Avoid Financial Conflict in Marriage. Episode 160, how Finances Affect Divorce. And obviously we have this whole new YouTube audience now we're getting a lot of views.
Speaker 2So if you're sitting here watching on YouTube, uh, if you're not, it's called a wiser retirement. Uh, what is a certified divorce financial analyst? We talked about that at the very beginning with you and Shauna. Uh, can joint bank accounts prevent marital conflict? Um, I have you know, that's a whole nother episode. We should bring Leslie in on Gotta unpack that. As the other side of the conversation.
Speaker 3Studies show, experts say joint accounts promote marital harmony.
Speaker 2I have this thing where I do people sit down. They'll say oh, we have separate accounts.
Speaker 5I say oh, okay.
Speaker 2Well, how long have you guys been married? Oh, 20 years, I'm like. So when's your money going to get married? But some people take it well and some people don't. That's the, that's the best thing about being successful, right?
Speaker 1Just yeah, I can just be me.
Speaker 2If you offend that person, you know what? Another client will walk in the door Exactly. If I see a process and this is how it works, and this is how this marriage is wired, then it's fine Right. But the problem is usually it's creating conflict, and so I'm trying to resolve the conflict, distrust and paranoia.
Speaker 1Yes, when other wheels start to you know, you know around or whatever then, all of a sudden, okay, well, I wonder what he's been, and now I don't trust him because of that. Now, should I be worried about the money. You know Um so usually it works well until it doesn't Exactly you know.
Speaker 2I'm using the camp of like well, I just can't go buy whatever I want. I'm like well, that's the problem, because you're not safe enough for retirement. So, yes, you need checks and balances, you need someone to tell you no accountability.
Speaker 3Cause it's always like exactly, exactly.
Speaker 2It's like I can't even expect to be succeeding here If if you're not on this journey together. That's that's usually my angle with that. Um, we do have a blog. We've linked to uh how to differentiate between marital and non-marital assets and then we've linked directly to um uh, leslie's uh website as well. So thanks for watching Uh, and we'll see you guys again later. Until next, time yeah. Thank you.
Speaker 5Thanks for listening to a wiser retirement podcast. We hope you enjoyed today's episode. Make sure to subscribe wherever you're listening. That way you don't miss any new episodes. We'd also appreciate if you could leave a rating and review. If you have any questions about anything that was discussed today, head to wiserinvestorcom and reach out.
Speaker 5This episode was produced by Rachel Dotson. This podcast is strictly for informational purposes only and is not to be considered as investment advice or solicitation to buy or sell any financial products, securities, digital assets or any other investment vehicles, or a basis to make any financial decisions. Wiser Wealth Management Incorporated is a registered investor advisor with the SEC. The host and or guests may personally own securities, digital assets or other investment vehicles mentioned on this podcast. Neither the host nor guests of the show are compensated for their participation and no referral fees are paid to or received by any host or guest for clients, listeners or similar interests. Investments involve risk and, unless otherwise stated, are not guaranteed. Be sure to first consult with a qualified financial advisor, tax professional, insurance professional and or legal professional before implementing any strategy discussed herein. Past performance is not indicative of future performance.