Prenups 101: More Couples Sign Agreements Before They Say 'I Do'

Sept. 30, 2010— -- More middle class couples are getting prenuptial agreements, according to a lawyer's association.

The American Academy of Matrimonial Lawyers says about three-quarters of its members have seen an increase in prenups in the past five years. Couples of all income levels are apparently now hedging their bets before they walk down the aisle.

Mellody Hobson, president of Ariel Investments and "Good Morning America" personal finance contributor, appeared on the show today to talk about which couples should get a prenup, how the agreement should be structured, and the potentially sticky subject: how to broach the issue.

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Q: Why do you think they're on the rise, and who should consider getting one?

A: Hobson said there were several reasons for the increase. For one, the divorce rate is 50 percent. Many people enter marriage with some debt, and their partners may want to protect themselves from those financial problems if the marriage ends. Also, there are more women and in the workforce now and they may want to protect their assets, she added.

Prenups aren't always about money, Hobson said. They can cover everything from a guaranteed "date night" during the marriage to custody of the pets if there's a divorce. It can also contain provisions about how to handle your affairs upon your death, she noted.

Hobson said she believed having a prenup was a good idea for most people. She cited a recent Harris Interactive poll in which 44 percent of singles and 49 percent of divorced people said they thought having a prenup was a good idea. Fifteen percent of divorced people said they regretted not having one.

Q: How should I broach the topic?

A: It's not easy, because many people view prenups as being anti-romantic, or as a bet against the success of the marriage. But marriage is a contract, she said, and a prenup is simply a way of putting guidelines on that contract.

Because the couple will be merging their lives, it's important to discuss individual interests and aspirations. Try to talk about it early – soon after the engagement – and try to make your approach positive and reaffirming, she said. The venue is important, she added. This is not a discussion for a restaurant or in bed. If you have most of your serious conversations at the kitchen table, this is probably the place to discuss a prenup.

Q: Once we've talked and we both agree on a prenup, what should we do next?

A: Your next step should be creating the agreement. You should first take an inventory of all your assets and debts. Visit a family law attorney, even if you think your situation is uncomplicated. If you draw up an agreement on your own, it may not stand up in court – even if you get it notarized, she said. Lawyers' fees may vary, but expect them to start at about $1,500.

If you truly believe you have a simple agreement and are looking for a cost-effective solution, you may want to consider one of the online services. For example, legalzoom.com will have an experienced attorney help you create a prenup for about $695, she said. Before you finalize your prenup, make sure you have your partner review the agreement by his or her own attorney to ensure it's understood. The agreement is valid on your wedding day and it goes into effect when you get divorced, she added.

Q: What should the prenup cover?