Breaking Up Is Hard to Do... Or Is It?

      It is said that Tom Cruise and Katie Holmes wrapped up their divorce proceedings in a very short period of time — about 11 days — due to the fact that they had a tight prenuptial agreement that set forth how they were going to resolve their issues in the event that they got divorced. Did they have an agreement? Was it ironclad? Did they envision all their potential issues and therefore there was nothing left to fight over?

      We may never know. However we do know that they did wrap up their divorce proceedings in a short period of time. This could be due to the fact that they did have a prenuptial agreement, which given the trends in society is becoming a more common thing to address between engaged persons as they approach their wedding day. With at least 50 percent of all marriages ending in divorce and with people getting married later in life after they have accumulated significant assets, a prenuptial agreement is a prudent thing for people to consider.

      While a prenuptial agreement probably cannot address each and every issue that may arise in divorce proceedings after a long term marriage, it can go a long way to minimize or even eliminate potential issues in a divorce.

      For instance, if one party owned a house prior to marriage and after marriage sold it and contributed those sale proceeds to jointly purchase a new house with their spouse, and that residence became their marital residence and they both then contributed to the ongoing costs of this marital residence, in the event that they subsequently get divorced, the equity in that house is subject to being equitably split between the parties, and possibly could be split 50/50 between them. Is that fair given that one of the parties contributed a disproportionate amount to the purchase price through their contribution of the equity from the sale of their premarital house?

      If the parties had a prenuptial agreement, they could have included a provision whereby they contemplate purchasing a joint residence and use the sale proceeds from a premarital residence and further contemplate how they will distribute the equity of the joint house in the event of divorce. For instance, the parties could acknowledge that the spouse who contributes the proceeds from the premarital residence gets reimbursed that amount from the sale of the joint property, and then the balance of the equity is split equally between them. This would then recognize and acknowledge that one of the parties came to the marriage with some significant assets and also acknowledge the marital enterprise that the parties develop during their relationship together.

      However, how would you feel about discussing with your fiancee, in the midst of all the stress of deciding on flower arrangements, food menus, and who will sit where at the reception, that you should plan for the (possible) eventuality that you might get divorced? Talk about stress!

      Neil Sedaka sang about breaking up being hard to do. That was many years ago. Is it hard to do? Possibly, but you can take steps to minimize the pain and stress by taking a little time to plan in advance. It may seem counter-intuitive and a "downer" while you are planning a wedding, but hopefully a prenuptial agreement will stay in a drawer and collect dust. If not, at least it may make the break up easier and allow both parties to move on to the next stages of their lives with some of their finances intact.

      If you are married, and you could do it over, would you discuss a prenuptial agreement with your spouse to be? If you are not married, could you speak to your intended about a prenuptial agreement — and more importantly how do you bring up the subject...