Jan L Warner & Jan Collins
Question: I am engaged to a man who has been married twice before. This would be my fourth marriage. Each of us is 50 years old, and we both have children by our prior marriages, all of whom are grown. Although my fiancé has had some financial reversals in the past (including a bankruptcy and tax liens), he appears to be doing fine now. Since we met a year ago, he has been helping me financially by paying my mortgage and car payments, which he says he will continue to do. Now that we have decided to marry, I am getting nervous and thought it would be a good idea to get a premarital agreement to protect myself. But he balked and said that we don't need one. Is there any way, short of an agreement, for me to protect myself? I really love this man and want to get married.
Answer: Although premarital agreements may be binding between a husband and wife, contrary to what most folks think, third parties -- like the IRS and creditors -- are not bound. .
And there are other potential problems: (1) Without a waiver of estate rights, your spouse will be entitled to receive at least an "elective share" -- generally one-third -- of your estate, no matter what your will provides, and if you live in a community property state, the rules will be different. (2) If you file joint income tax returns with your spouse during your marriage, you are, in effect, signing a note to be responsible for past due taxes, interest, and penalties that you may not even know about. (3) Under the "necessaries doctrine," you may be responsible to your spouse’s creditors for his medical and certain other bills. (4) If your spouse enters a nursing home and spends all of his assets, before he will be able to qualify for Medicaid, you will be required to spend down your assets to the maximum allowed in your state – despite your agreement to the contrary. (5) By making your mortgage payments, your husband is probably gaining an equitable interest in your property -- and if you live in a community property state, different rules may apply.
In short, if your husband-to-be has a history of tax liens and a bankruptcy, we think you are getting yourself into a risky situation, with or without a premarital agreement. We strongly suggest that you thoroughly think this through. Having been married three times before, one would think that you would be ultra-cautious; however, if you are convinced you want to jump into the shark tank a fourth time, contact an experienced lawyer in your state to help you make some decisions.
SoloFact: When you decide that you want a separation or divorce – or find yourself in that situation, you should take a realistic look at your present economic situation regarding property division, alimony, and child support. In attempting to secure an equitable determination of your share of marital acquisitions and future support obligations or needs, it is important to remember that so long as there is a full financial disclosure by both spouses, a reasonable approach is the key to future success. You don’t want to be put in the position of being under so much financial pressure that you agree to either pay more than you can afford or take less than you need just to get the case finished.