“PRENUPTIAL AGREEMENTS”
Gail Berkowitz…………ON Pre-Nuptial Agreements
Law Firm of “Berkowitz, Cook and Gondring” of Kansas City
Question 1. HOW COMMON ARE PRENUPTIAL AGREEMENTS?
Question 2. WHY IS THAT?
Question 3. SOME PEOPLE WOULD SAY THAT IF YOU HAVE TO DO A PRENUPTIAL AGREEMENT, MAYBE YOU DON’T TRUST THE PERSON YOU ARE GOING TO MARRY. YOUR THOUGHTS ON THAT
Question 4. BY DOING A PRENUPTIAL AGREEMENT ARE YOU ALREADY PRE-PLANNING YOUR DIVORCE?
Question 5. ARE PRENUPTIAL AGREEMENTS ONLY FOR CELEBRITIES AND VERY WEALTHY COUPLES?
Question 6. WHAT SORT OF THINGS SHOULD PEOPLE PUT INTO A PRENUPTIAL AGREEMENT?
Question 7. SO IT’S PROTECTION OR A MATTER OF STRATEGIC PLANNING?
Question 8. WHAT ABOUT CERTAIN THINGS YOU CAN’T PUT INTO A PRENUPTIAL AGREEMENT?
Question 9. ARE PRENUPTIAL AGREEMENTS RECOGNIZED AS CONTRACTS IN MISSOURI, OR IS THERE A STATUTE THAT RECOGNIZES THEM?
Question 10. WHAT DO YOU SAY TO THE ROMANTICS AMONG US, WHO SAY, LOVE WILL TAKE CARE OF EVERYTHING?
Question 11. SO THE BRIDE AND GROOM WOULD SIT DOWN WITH THEIR ATTORNEY PRIOR TO THE WEDDING AND MAP OUT A PRENUPTIAL AGREEMENT…..?
Text Transcript of Audio Interview
Shelley Tucker: Welcome to law in your life a Missouri podcast for the public. I'm Shelley Tucker. Our guest is Gail Berkowitz of Berkowitz, Cooke and Gondring of the law firm in Kansas City. We're discussing prenuptial agreements. How common are prenuptial agreements?
Gail Berkowitz: More and more common. I would say in terms of first marriages probably less common; a second marriage is certainly far more common.
Shelley Tucker: And why is that?
Gail Berkowitz: Most people in their first marriages are marrying younger, they don't have a lot of assets to be concerned with although families where there has been inheritance or there is a concern for an inheritance in that - the near future, you might find that the parents are supportive of a prenuptial agreement.
Shelley Tucker: Well Gail some people might say that - you know, if you have a prenuptial agreement or you go into a marriage with a prenuptial agreement, maybe you're not trusting the person that you're going to marry. Your response on that
Gail Berkowitz: I wouldn't agree with that at all. In fact, I think often times if a prenuptial agreement is being drafted properly both the spouses are receiving counseling. They're really going to be discussing some financial issues that they might not have considered. Prenuptial agreement don't forget not only deal with what occurs upon a divorce but also what occurs upon a death of either party.
Shelley Tucker: By doing a prenuptial agreement you're not already preplanning your divorce at all, are you?
Gail Berkowitz: I assume there are some people who do go into it with that in mind but that would really be the minority.
Shelley Tucker: Are prenuptial agreements only for celebrities or as you said very wealthy couples?
Gail Berkowitz: Absolutely not. Particularly people who again have been married previously and they may have children from their prior marriage and they would like to protect that there would some other assets that would be set aside for their children.
Shelley Tucker: What are some things that we should put into a prenuptial agreement?
Gail Berkowitz: I'd like to look at prenups as two very distinct issues. One is what would occur upon death and what would occur upon divorce. A lot of people put into their prenups issues regarding maintenance which is what we used to refer to as alimony but more than that it's really to look at what occurs with assets that either party has brought into a marriage or anticipates inheriting during the marriage and how they would like to preserve those for either their children again from a prior marriage -
Shelley Tucker: - It's a protection and it's - it's really strategic planning, isn't it?
Gail Berkowitz: Absolutely. And we often ask our clients to work with an estate planner.
Shelley Tucker: What about certain things you can't put into a prenuptial agreement?
Gail Berkowitz: Anything that relates to your children would be inappropriate because a court would retain jurisdiction to make any decisions relating to your children. My law partner and I have often questioned when a prenuptial agreement does address the lack of support for a spouse particularly when one spouse has been the only - or tends to be the only breadwinner in the family and that makes me very uncomfortable.
Shelley Tucker: Are prenuptial agreements recognized as contracts in Missouri or in some states? Is there a statute that recognizes prenuptial agreements?
Gail Berkowitz: Kansas has passed a uniform act. Missouri does not have the uniform act but they are considered to be contracts as long as you meet all the qualifications. Those qualifications are that both parties have had an opportunity to be represented, that there has been a full disclosure of all the assets, and that there has been what we call consideration. In other words, those parties are receiving a benefit from the contract. Kansas has adopted the uniform act and so long as you can reflect or show that both parties were adequately represented, and that is a gross generalization, but it is much easier to uphold than in Kansas because of the act than it is in Missouri. There are far more qualifications in Missouri.
Shelley Tucker: What do you say to the romantics among us who say that, you know, love will just take care of everything in a marriage?
Gail Berkowitz: Well luckily nobody asks me that question, they have already made the decision by the time they come to me. Again, I think a prenuptial agreement is approached by both parties as a way to not only plan for the future but also to raise issues for today. I think it is a very good mechanism for that.
Shelley Tucker: How much would one cost? I mean, just go to your attorney as you are getting ready to get married, the bride and the groom, sit down with their attorney before they get married and set this up, right?
Gail Berkowitz: Preferably far before the wedding. First of all, you don't want somebody who is the day before the wedding having to deal with these issues, but it is shocking how many times it does occur. And that is one of the issues to be reviewed in Missouri to determine if the document was conscionable. But both parties would have their individual attorneys, preferably six to seven months before the marriage would be ideal. Your attorney is going to bill you on an hourly basis.
Shelley Tucker: Our guest has been Gail Berkowitz with the Kansas City law firm of Berkowitz, Cook & Gondring. The Law in Your Life provides general information about the law for the public for your specific legal needs. Remember, you can only get legal advice from your attorney. We hope you have enjoyed this Pod Cast . If you have any suggestions for future Pod Cast topics, let us know at mobar.org. I am Shelly Tucker for the Missouri Bar and Law in Your Life.
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