Question: In preparation for our upcoming marriage (the second time for each of us), my future wife and I read up on premarital agreements in books and on the Internet before going to a lawyer. But now we have been to three lawyers in our hometown of 65,000 who were recommended to us, and we are very confused. Their advice runs the spectrum from being unnecessary, simplistic, or complicated. We each have assets, are employed, and have children from our prior marriages. While we love each other, we both want to make sure our children are protected and that our agreements are enforced. We seem to have run out of ideas about how to put our plan in process. What is the next step?

Answer: Of late, we have received a growing number of questions about premarital agreements, especially from folks in their 40’s and 50’s who are in the process of entering second marriages. First and foremost, it is essential to find lawyers who are experienced in preparing these agreements. We say “lawyers” because each of you should be independently represented. Experienced lawyers will prepare six or more of these agreements each year. Following are some of the basics that should be included in any premarital agreement:

1) There should be statements of the circumstances under which the agreement is entered, the purposes of agreement, anticipated contributions by each of you during marriage, and your employment plans. In this way, should the agreement later be the subject of litigation or arbitration, the judge or arbitrator will be in a better position to understand your intentions, find that the agreement to be fair, and avoid ambiguities..

2) Your lawyers should be identified or, if one of you waives the right to have a lawyer, the conditions and circumstances regarding the waiver of this right should be set out

3) The premarital property each of you brings into the marriage should be clearly defined as should such things as planned disposition, how to treat increased value of this property over time, and income earned from premarital property.

4) Each of you should make full disclosure of assets, liabilities and income. We suggest that each of you attach financial statements, tax returns, and other financial data to confirm the disclosures made.

5) There should be definitions of “marital” property and how you propose to dispose of it, and the income earned by it, at death or divorce.

6) Whether or not there will be spousal maintenance is an important question. If both of you waive future support without knowing the conditions that may exist at that later date, there may be enforcement problems should one of you become destitute.

7) Life insurance and retirement plans must be addressed. Since these assets are distributed according to beneficiary designation and not be will, there should be verification provisions available so that each of you can go directly to the insurance company or plan administrator for information about the policy or plan.

8) Due to our mobile society and the potential that there may be a choice of state law, you should choose which state law will apply to the agreement. The agreement should be sufficiently flexible to deal with any move.

9) Because part of the agreement could be declared unenforceable, the document should contain language about severing these provisions.

10) You should include procedures by which the agreement can be modified or canceled or even phased out over time, depending on your desires.

11) Estate planning and long-term care planning documents should be prepared and attached to the agreement.

Since there are quite a few more basics about which you should know and since we have space limitations here, visit www.flyingsolo.com, click on “divorce and separation” and “columns” to find a more expansive description.