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May 01, 2023 From the Editor in Chief

From the Editor in Chief Spring 2023

Kathleen A. Hogan

Hearts and flowers have their place, but—whether happy couples realize it or not—a marriage is a merger. Two people who may or may not know each other very well are choosing to link their financial, social, and emotional futures “for better or worse.” We hear lots of people suggest that it demonstrates a lack of commitment for a party to be negotiating their exit strategy before the relationship even gets formalized. However, there is much to be said for an “eyes wide open” approach to any situation, especially one that carries the potential for life-long consequences.

In many areas, premarital or prenuptial agreements are becoming more common. The availability of do-it-yourself forms and inaccurate internet information is also growing. Our Board of Editors has put together a collection of up-to-date and authoritative, informative information complied in a single issue.

In our lead article, “What Is a Prenuptial Agreement?,” Jennifer M. Riemer and Jessica C. Krouner explain the rise in popularity of prenuptial agreements among the millennial generation, define what a prenup is, who benefits from them, and who should have one.

In “The Traveling Prenup,” Peter M. Walzer quips, “Foreign marriage contracts, like cheese and fine wine, do not travel well.” He addresses false assumptions about the effect that might be given to U.S. prenuptial agreements in foreign countries. He also forecasts an increase in premarital agreements, including religious agreements, drafted in foreign countries being tested in U.S. state courts due to an increasingly interconnected and global world.

Dr. Jerome H. Poliacoff in “Prenuptial Agreements: Till Death Do Us Part?” gives a psychologist’s perspective on the potential benefits of couples entering into a prenuptial agreement. Contrary to the historical perception of prenups casting doubt on new marriages, he suggests that if done correctly, the process can inspire honest conversations about money, ambition, and plans for the future.

Michelle M. Gervais and Lauryn Coleman offer several “Pro Tips for Negotiating, Drafting and Executing a Prenuptial Agreement,” from doing your homework and knowing your client to obtaining independent legal counsel. They also address confidentiality and nondisclosure agreements, waivers, certifications, and more.

In “Estate Planning Pointers and Pitfalls in Prenuptial Agreements,” Jennifer S. Tier and Matthew W. McQuiston discuss special considerations for prenuptial agreements intended to address the disposition of assets upon a spouse’s death, including beneficiaries, estate tax planning, businesses and succession planning, spousal share/renunciation/spousal award, and jointly owned assets.

Neil S. Cohen and Harold Deiters stress the importance of “Thinking Through the Tax Ramifications of a Prenup.” After stressing the importance of financial disclosures, they discuss the importance of keeping abreast of changing tax laws in light of the elimination of the tax deduction for alimony payments. As they point out, drafting a prenup as a “living document” can help protect against unforeseen changes in tax law.

In “New Beginnings: The Legal Implications of Remarriage vs. Cohabitation” by Molshree A. Sharma, we learn the legal pros and cons of marriage versus cohabitation for people in their middle or later years. The discussion includes what benefits or obligations from a prior divorce might end or carry over following remarriage. The also discuss de facto marriage vs. common law marriage vs. cohabitation (which state courts are starting to legally define); estate planning; and special considerations for same-sex couples.

Christopher C. Melcher and Ashley K. Quan explain why a loosely drafted choice of law provision may cause trouble in enforcing a premarital agreement in another state and how to draft a choice of law clause in their article “Demystifying Choice of Law Clauses.” They include a sample choice of law clause that addresses the procedural and substantive law issues in their home state of California.

In “Premarital Agreements and Post-Execution Conduct,” Linda J. Ravdin cautions us that “it’s not over when the agreement is signed.” Family law attorneys can anticipate some common circumstances where post-execution conduct can affect the enforceability of a premarital agreement and proactively address them at the drafting stage. She also encourages attorneys to counsel their clients about steps to take and avoid post-execution problems.

David N. Hofstein and Ellen Goldberg Weiner outline several “Alimony and Maintenance Considerations in Prenuptial Agreements.” They offer strategies when drafting them with a focus on flexibility and preparedness for unforeseen circumstances. Topics covered include income or asset disparity, choice of law provisions, modifications, fixed versus increasing amounts of support/alimony, triggering conditions, cost-of-living increase, downside protection in case of a financial downturn, and more.

The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.

Kathleen A. Hogan

Principal, Hogan Omidi, PC

Kathleen A. Hogan is a principal with Hogan Omidi, PC, in Denver, Colorado, and Editor in Chief of Family Advocate.