Why You’re (Probably) Wrong About Prenups

Mindy:
Welcome to the BiggerPockets Money Podcast, show number 301, where we talk to Aaron Thomas from prenups.com about, can you guess?

David:
Ah, prenups?

Mindy:
Yes, prenups.

Aaron:
People talk about making big financial decisions. There’s, I think, a quote about the biggest financial decision to make your life is buying a house, wrong. It’s getting married. It’s getting married is the biggest financial decision you’ll ever make. And so, the idea that you do that without some planning, again, when you get a prenup or postnup, you’ve at least got to sit down and have a plan for how you manage your finances.

Mindy:
Hello, hello, hello, my name is Mindy Jensen. And joining me today is David, the Military Millionaire. Hurray. David and I are here to make financial independence less scary. Let’s just for somebody else, to introduce you to every money story because we truly believe financial freedom is attainable for everyone, no matter when or where you’re starting.

David:
Whether you want to retire and travel the world, go on to make big time investments and assets like real estate or start your own business, we’ll help you reach your financial goals and get money out of the way, so that you can launch yourself towards your dreams.

Mindy:
Okay, David. Today, we are talking to Aaron Thomas. He is an attorney in Georgia and he is from prenups.com. Guess what we’re going to talk about? Prenups, you already guessed.

David:
Yeah. I’m excited about this one because I don’t know much about the prenup world.

Mindy:
I did not know much about the prenup world and I actually learned a lot. You can hear me learning a lot today. You actually, there’s a lot of light bulb moments in this episode today.

David:
Oh, yeah.

Mindy:
I feel a little silly. When we’re recording. I haven’t make a note. I feel like a fool for not noting this. But this is an episode if you are married, we talk about the postnuptial agreement. If you aren’t married, but are considering getting married, there’s a lot of really great advice. I didn’t get a prenup. You don’t have a prenup, David. But taking the information from this show, I probably would have been more receptive to Carl’s suggestion that we get a prenup if I had listened to this before we got married.

David:
Yeah, I don’t want to call listeners idiots if they don’t get a prenup, but I consider myself an idiot for not having gotten a prenup after listening to this podcast. I would say 80% of what I thought I knew about prenups was a lie and there’s so much more to this than I ever thought. And it’s almost like setting up guidelines for how you want to run your marriage ahead of time. You’ll hear it through the episode. I was just like, “Oh, my goodness. Oh, my goodness. Oh, my goodness.” And yeah, it’s great.

Mindy:
Yes, so clear your mind of what you thought a prenup was because it isn’t and listen to this show. Aaron Thomas is a well-known litigator having won dozens of jury trials and bench trials across the State of Georgia. He exclusively practices family law, representing clients in cases of divorce, custody and child support. And he joins us today to talk about the super exciting topic of prenups and postnuptial agreements. So, Aaron Thomas, welcome to the BiggerPockets Money Podcast. I’m so excited to talk to you today.

Aaron:
I am so excited to be here. Thanks for having me on, guys.

Mindy:
So, I want to jump right into it with a little bit of background about my own marital situation. I have been married for 20 years. My husband, my fiancée at the time, suggested we get a prenup and I did not respond nicely because I suggested to him that he was planning our divorce. We didn’t have anything. I think I had a $50,000 condo and he had $50,000 in, like with a $49,000 mortgage. It wasn’t paid off. And he had $40,000 in student loan debts. We didn’t have anything to bring into the marriage, so there was nothing worth protecting.

Mindy:
So, when I said, “Absolutely not. We’re not getting a prenup. Don’t even ask me again.” He never brought it up again. And we got married and we’ve been happy ever since. So, I think that I represent a lot of people, especially those getting married in their 20s and 30s. I don’t have anything to protect. Why would I get a prenup? And now, I have something to protect. But until you applied for this show, I didn’t really understand what a postnup was. So, first, let’s define prenup and postnup. And then let’s jump into it and I’m going to put you on the hot seat and ask about your marital situation, too. So, first, let’s define things.

Aaron:
Yes, absolutely. Prenuptial agreements and postnuptial agreements are essentially the same thing. Prenuptials are signed pre the nuptial, so they are signed before you get married and post nuptials are signed afterwards. And I’m glad that you asked me to define what these things are. So, a prenup or postnup are essentially a written document and agreement that a marrying couple or a married couple will sign, that defines how they will handle their finances, yes, in the event of a divorce, but also during the marriage itself. And I think a lot of people miss out on that second piece of it is, is they think, “Well, I’m never getting divorced or I’m never going to plan for the divorce.” And they don’t recognize that there are a lot of benefits to the actual marriage itself. A prenup can be beneficial, even if you never get divorced.

Mindy:
Okay, so today I learned that the prenup can also dictate how you do your finances in your marriage. That’s very interesting. Can you give us some examples of what a prenup would include about how you handle your finances during the marriage?

Aaron:
Yeah, absolutely. So, the way that I guide my clients through the process preparing their own prenup is I like to split it up into three categories. There’s before the marriage, there’s during the marriage, and then there’s what I euphemistically called the contingency plans or potentially after the marriage, right. And so, before the marriage, you have to disclose, for prenup to be enforceable in Georgia or any of the other 50 states, each spouse has to disclose all of their assets and debts.

Aaron:
And back when we prepare these prenups, we literally attach a schedule for one spouse and for the other spouse to the back of the document where they each lay out all of their assets and debts. And just that initial act of transparency at the beginning of the relationship, I found, can be hugely beneficial. And how many people do we know that got married and they’re like, “Oh, I had no idea he had 200 grand of student loans or 50 grand in credit card debt.” So, just that transparency off the bat is a great benefit before you even get married.

Mindy:
Wow. Yeah, that’s a huge help. So, you’re saying, I can’t believe somebody would or people are saying, “Oh, I didn’t know he had this?” I can’t believe you would get to that point of, “Yes, I’ll marry you, but I don’t know your financial situation.” But I live in this little la-la land where I just know.

David:
I can attest to having served in the Marine Corps for 13 years that, that is a very common thing. I had a couple of different instances with service members who they married their spouse, their spouse had six figures in collegiate debt, student loan debt, or credit card debt or whatever. And they had no idea because these guys and girls, they come out of boot camp, and they’re like, “I’m on top of the world. I’m going to get married. I’m in love. Everything’s amazing.” And they get married to somebody they probably have no business doing, in a timeline they have no business doing with no information about any of that. And then when things go south, things go really south.

David:
And finances is, I’m sure we’re going to get into this, but finances is one of, if not the leading cause of divorce, right? And especially in a situation like that, like I had a service member who he was in love with somebody who was 14 years older than him and brought four kids into the relationship. And then he found out that they had a quarter million dollars in student loan, credit card, delinq, all kinds of stuff. And then also had the magic credit card that is it just never runs out of “I can spend all your money.” And it was a train wreck to try to unwind and help this guy out of. And that’s obviously not the norm, but just to throw out, it’s a real-world situation where people for some reason get married and have no idea, which is just crazy.

Aaron:
Yeah, yeah. Mindy, I think you’re me, where you just never get to that spot without having had some frank conversations about your finances. But I think in reality, you might be surprised how many couples make it into the marriage without having had that conversation. It’s not exactly first date material or third date material where you open up your QuickBooks or your balance sheet and show it and I think a lot of people just follow that, that same, that path of least resistance and never have the conversation. There’s tap money so taboo and there’s shame around talking about how much debt you have or you haven’t saved as much for retirement as you wish you had at that point. And so, a lot of people just put their head in the sand.

Mindy:
Yeah.

David:
Yeah, it’s probably like you said taboo. I’m thinking about this, it’s probably equivalent to some people with age. So, I’m going to use my uncle as an example and he’s going to love this, but he met his wife at, I don’t know, a club or whatever. And she lied about her age and said she was younger and he lied about his age and said he was older. And it was a quite a while they’d been dating when they realized that they were I think 17 years apart and had no idea.

David:
And finances is probably similar, where if you have $150,000 with the debt and you feel like you’re drowning, you’re not going to come to a relationship and be like, “Hey, here’s all my baggage financially, please help.” And if you are loaded, you’re not going to come into, I would assume, I’m not going to go around like, “Look at all this money I got. Come date me, because I’m rich.”

David:
So, I would imagine it’s similar, where you’re like, “Yeah, I’m going to play it really low key here, because I don’t want this person to like me, more or less because I have X.” And so, it probably puts you in this weird conundrum where people lie or just don’t bring it up for various reasons. And yeah, it’s interesting.

Mindy:
Wow. Okay, let’s get back to the question that I asked 20 minutes ago before we went off on these big tangents. But what are some things that your prenup says about how the money is handled during the marriage? Because, like I said, I just learned that right now that that’s what a prenup can do for you. So, you’ve gotten financially naked with your potential spouse, “Here’s all of my assets and debts.”

Aaron:
Yes. And so, when it comes to managing your finances, during the marriage, there are some things that work and there are some things that don’t work. You mentioned your intro, I’ve been a family law attorney for years and years. I’ve done hundreds of divorces. And so, I’ve seen the patterns of things that people do, ways that people manage their finances that work, and ways that don’t work. And so, our parents’ generation, it was very common for all of the expenses to be paid at one account. All the money goes into one account. All the expenses get paid out on one account.

Aaron:
And for most couples, today, there is a better system. And so, I usually recommend that couples have three categories of accounts. You’ll have your joint account or accounts, and then one spouse will have their account, the other spouse will have their account. And the joint account is funded by both parties income. Some people will deposit both of their incomes into that joint account directly. And then they each get an allowance, if you will, out of that account that goes into their separate accounts.

Aaron:
Other people will have their income go into their separate accounts and they contribute to the joint account, agreed upon an amount or agreed upon percentage of those expenses. But you want to have these three buckets of different money. Spouse 1’s money, Spouse 2’s money, and then the joint money. And then you can sit down and talk about what are our truly joint expenses and make sure that only those expenses are coming out of the joint account. So, for most couples, that’s going to be mortgage or rent, utilities, groceries, insurance, those kinds of things that are truly joint expenses.

Aaron:
And then your separate accounts, you can spend however you want without oversight of the other spouse or, for example, in my relationship, I’m the guy, I got to have the new phone every year. I can’t even tell you what the features are, but I got to have the new phone when it comes out. And my wife, she just, she wouldn’t spend her money on that, so to her, that would look like a waste. So, I buy that from my separate account. On her side, she’s likes to go out and eat lunch during the week. I’m a brown batter, so that would look like a waste of money to me to go out and drop 20, 25 bucks on lunch every day.

Aaron:
And I think if we were seeing each other’s expenses come out of the joint account that can tend to cause some friction. Whereas if you set up this three account system that I’m talking about, then it can reduce a lot of the tension and as David was saying, a lot of the arguments that couples have during the marriage. So, that’s just one example is how do we set up the accounts and what expenses come out of what accounts?

Mindy:
Okay, so you just noted that you are married. Do you have a prenup?

Aaron:
I sure do. I wouldn’t have gotten married without one, yeah.

Mindy:
Ooh, good. Now, since you’re an attorney and attorneys tend to marry attorneys, I’m going to say is your wife an attorney?

Aaron:
She is. She is an attorney.

Mindy:
Okay, so that’s going to make it a little bit easier. Okay, I would assume that that’s going to make it a little bit easier to broach the subject of, “Hey, we should get a prenup.” Because she’s probably got a more astute legal mind than I do and probably understands the whole contract thing more than I do. And probably has seen divorces more than I have and the horribleness of a divorce and just because. And well, you practice family law, does she practice family law?

Aaron:
She does not practice family law. And I think it helped that she’s a lawyer, but I think probably even a bigger aspect was that she was previously married. And so, she’s already been through one divorce and all of the financial craziness that comes with that. And I think that was a big factor in her being open to the idea of a prenup and when it was our turn to get married.

Mindy:
Okay, did you bring it up or did she bring it up?

Aaron:
I brought it up, but by the time I brought it up, it was really a foregone conclusion, because when we met, we were both anti-marriage. So, I had been a divorce attorney for a few years at that point. And early on in my career, I literally used to give all my friends and family the advice, “Don’t ever get married.” I was just, I was absolutely, I wasn’t even talking about “get a prenup.” I was like, “Don’t get married,” because people have no idea what they’re getting into and I’m divorcing these people every day.

Aaron:
And no one’s disagreed with me on this, a messy divorce is best avoided at all costs. I don’t feel like that’s a controversial statement to make. And because I saw the turmoil that couples were going through in divorce and the expense. And the fact that the average divorce takes a year to complete a year out of your life and the impact on children and your job and your stress and everything else. I was just anti-marriage altogether.

Aaron:
And then it was only after I matured in my ideas and met my special someone that I said, “Okay, I’ve seen all of the pitfalls that divorcing couples or that married couples go through when fighting about money. If I were going to draft a prenup that would actually help me stay married, what would that prenup look ? Could I reverse engineer a financial system for my own marriage that would let me avoid all of the mistakes that all of the divorcing clients that I’ve had over the years have made?” And that’s really what birthed the idea for prenups.com. I was trying to draft my own prenup and eliminate the money arguments that I saw my clients having.

David:
This sounds a lot like when you ask an EMT if it’s a good idea to buy a motorcycle. It’s like, “Well, all they see is the motorcycle wrecks, so no.” And as a divorce attorney, I’d imagine it’s a similar, like you don’t ever hear about the, like, “Oh, this person’s happily married.” That’s not what comes into your daily life.

Aaron:
Fair. Yeah, I see only one end of it. People don’t come and hire me when their marriage is going fantastic, so yeah.

Mindy:
So, a moment ago, you suggested that spouses have three bank accounts, his, hers and theirs. And is that something that you do in your life? Do you mind if I ask you super personal questions? And because I have always been of the mind that it is our money. My parents are still married. My husband and I have been married for 20 years. When we got married, we went on our honeymoon, came back, and combined everything. And he made more than I did, but not grossly more than I made. And we just always assumed that they would be together.

Mindy:
And we’ve never had a fight about money, but we’re both considered personal finance experts, so we talk about money all the time, so we are not normal. I think that most people don’t have all these conversations about money. But it seems like your way could be great, but I can also see issues popping up when there is such a income disparity. Later on in life, my husband made, I think four times what I was making, and then I stayed home with the kids for a while and I was making zero. And I’m just wondering how you handle that sort of thing?

Aaron:
Yeah, yeah. I actually think that these kinds of setups can be fantastic, especially in cases where there’s a big disparity in income, so I’ll give you a couple of examples. In my own relationship, we do what I call the inside-out plan, so all of the income goes into the joint account, so we both see all the money that goes in there. And then we each get an allowance of an equal amount of money that goes into our separate account. So, even though there might be a disparity in our incomes in our own household, we each have our own spending money.

Aaron:
One of the things I like to say is, you can’t have two people living in the same household, but in completely different socio economic brackets. That’s a recipe for disaster. There’s got to be some sharing of the wealth inside, under your roof. And for example, this is one of the cases that led me to come up with this system, I did a divorce one time where the husband made 200 grand a year and the wife stayed home and was raising their children and he gave her an allowance of $300 a month to spend.

Mindy:
A month?

Aaron:
He kept every other dollar. A month, a month. And it’s borderline abusive, financial abuse. And what a lot of couples will do is when they’re contributing to the joint expenses, they’ll contribute proportionate to their income. So, for example, if you have, one spouse is making 10 grand a month and the other spouse is making two grand a month and let’s say the joint expenses are $3000, so that’d be $1500 per person. Well, if Spouse 1 is making 10 grand and they contribute $1500 to the joint account, that’s no sweat, they got $8500 left to spend. If the other spouse, though, is making two grand and they’re contributing 1500 to the joint expenses, well, then they’re left with $500 at the end and they can barely, go out and get their own lunch.

Aaron:
But what a lot of couples will do is they’ll say, “Okay, we each contribute our proportion expenses, so that the higher earning spouse may contribute 80% of the joint expenses, pay 80% of the joint expenses, and the lower earning spouse will pay 20% of joint expenses.” Or some couples will say, “We’ll each contribute 50% of our income to the joint account, no matter how much we make.” And that way you even out the impact of disparate incomes between the spouses.

Mindy:
Yeah, I think it’s important to have the conversation. If you don’t have the prenup, if you do have the prenup, you have to have the conversation about money, well, unless you’re on the same page. So, I’m sitting here like, “Do as I say, not as I do,” because I didn’t have the in the conversation about money before we got married, because I didn’t need to. I knew he was frugal, I’m frugal. I knew that we weren’t spending every dollar that we brought in because we use coupons all the time and we ate at home instead of going out all the time.

Mindy:
And I’m very old. We would rent a movie from Blockbuster instead of going to the movies. And these are ways to spend time with each other without breaking the bank. But if you aren’t getting these same context clues from your partner, then you need to have these conversations like, “How do you spend your money?” And we both drove really crappy cars. It’s not like one of us was living high on the hog and the other one was scraping by. But then like I said, once we got married, we just combined everything.

Mindy:
And I think one of the things that makes our marriage so successful is we don’t fight about money, but we’ve also always had a surplus of it. We’re just really frugal people. We don’t spend as much as we bring in. And that’s going to be key right there is when you’re not spending every dime that comes in, there’s already a surplus, so you don’t have to fight about money. But there’s also a lot of respect between the two of us, because I don’t spend money on things without just checking in with him.

Mindy:
“Hey, do you care if I buy this purse for $200?” And because he’s like, “No, I don’t care.” And he’s, “Oh, do you care if I buy this bike for $1000?” Like, “Do you really need another bike?” He’s like, “Well, this one’s a road bike and I only have a mountain bike.” Like, “Yeah, I don’t care.” Or, “Hey, do you care if I buy a motorcycle?” “You haven’t had a motorcycle in a while. I don’t care.” We’ve never had an argument about it, but it’s just checking in. He’s not telling me what I can and can’t buy. It’s just a respectful checking in as opposed to, “I’m just going to spend this money without talking to you.” And that’s only on frivolous purchases.

Mindy:
When I go to the grocery store, I’m not calling up to say, “Hey, do you mind if I spend $100 on groceries?” Because I’m the one that’s cooking, I’m going to spend $100 on groceries because I need all that stuff to make the meals. But I forgot where I was going with that.

Aaron:
Yeah, well, yeah, if I can jump in on that, because you said something that I love. And I love that you dropped the word respect in there because, Mindy, what you and your husband are doing is you’re naturally doing what I coach my clients to do in their own marriages and in their prenup. So, for example, a provision that we have in almost every prenup or postnup that we draft is conversations about money that’s coming out of the joint account over a certain amount. So, for some couples that’s $500, for some couples it’s $1000. For one prenup I just recently drafted for a professional athlete, it was anything under $10,000. They didn’t need to discuss. You’re free to spend $9900, however, you want, but anything over 10 grand you want to discuss.

Aaron:
But most couples have some threshold amount that if the other spouse is going to be spending that much money from the joint account, they want there to be a discussion ahead of time. And just like you said, it’s respect. It’s not going and begging for permission or that kind of thing. It’s just a mutual respect of, “Hey, if I’m going to make a purchase, a significant purchase from the joint funds, that’s something that impacts you. I should at least give you a heads up and give you a chance to say, ‘Eh.’ Voice your objection or be like, ‘I’m okay with it.'” And my wife and I do that, and we’ll even do it for amounts that are under the amount because it’s just, it’s an ingrained habit.

Aaron:
And anything, for me, these prenups are drafted on three principles. It’s communication, fairness, and transparency and anything that promotes one of those three principles is a good idea for me. And so, that hits all three. We’re communicating, we’re being transparent. And some of the idea, maybe I’m being naive here, is that if you build into your relationship these habits of communicating, even about the little things, about being transparent. Even about the little things that some of those behaviors will bleed over into other parts of your relationship, beyond just the financial part of your relationship.

Mindy:
I love that because you said you were going to reverse engineer the divorce, so that you didn’t have to get a divorce. “And here’s all the things that I’m going to do so that my marriage is good.” I love that. Because yes, the number one thing is you have to communicate with your spouse and if you want your spouse to know something, you have to tell them because they cannot read minds. And if you want to know something from your spouse, you have to ask them, because you cannot read minds. I can’t convey that enough. Talk, talk, talk, talk, talk.

Aaron:
Yeah, and along those same lines, we will put provisions into our prenups or postnups that are not strictly financial. So, for example, we will put provisions about counseling into prenups. Some couples that I have worked with over the years, whenever one spouse, whenever the husband wants to go do counseling, the wife isn’t interested and when the wife comes around and wants to do it, the husband isn’t interested. And so, we will often put into our agreements that either spouse can trigger marriage counseling, say no more than once a year.

Aaron:
But either spouse can just put it in writing, send an email or text to their spouse and say, “We need to do counseling,” and you are contractually obligated to do three counseling sessions or six counseling sessions. Something like that, so that when that time comes and the spouse is like, “Hey, I want to do counseling,” or you’ve already agreed ahead of time, “Once a year, I can trigger it and we got to go do a couple of sessions.” And we even put that provision in before either spouse can go file for divorce. “You got to go do three counseling sessions.”

Aaron:
Sometimes it’s to try to save the marriage. Sometimes it’s, “If we’re going to split, can we do this at least in a respectful manner and not give all of our money to the lawyers.” Even though I am one of those lawyers myself, I still, would prefer to help my clients avoid having financial ruin coming from making the lawyers rich. So, counseling is another big thing that that we’ll put into these agreements that I think help couples, even if they never approach a divorce.

Mindy:
When you’re writing a prenup, are you writing the prenup with one spouse or with both spouses together?

Aaron:
So, under the law, I can only represent one spouse and so, I am writing it for one spouse. But I also don’t do the kinds of prenups where somebody comes and it’s like, “I just want to, if anything ever happens, I want them to be penniless, out on the curb, out of my life.” There’s just, there’s enough people that just want fairness and a fair prenup that I don’t have to take those types of cases.

Aaron:
And I think that most people come in wanting their marriage to succeed. So, when I start proposing these types of solutions and saying, “Hey, look, even if you’ve got all the money, they’ve got to benefit from some of it by being married to you. Otherwise, it’s not going to work out anyway.” So, that’s another one of the things that I try to help my clients navigate.

Mindy:
So, you can only represent one spouse. Is the other spouse being represented by a different attorney?

Aaron:
So, in some States, it is required for the other spouse, for both spouse to have their own attorneys. In Georgia, you don’t have to. You just have to have the option or have had the opportunity to go meet with another attorney. Sometimes a lot of my clients, to avoid having to pay a second lawyer, will bring their spouse to meet with me as well and essentially, waive their attorney-client privilege for the purpose of having these open conversations in front of the other spouse. And let them know, “Hey, there’s no back dealing going on here. I’m not telling the lawyer to slide in some stuff that’s going to benefit me and hurt you at the end of the day.”

Aaron:
And they’ll do it, the whole process will be 100% open. There, I can’t go share what the client tells me, but the client can go share what I say. That’s their prerogative. So, that’s how a lot of couples will do it, because it’s they don’t want it to be a fight. They don’t want to get two lawyers, going back and forth in a big prolonged negotiation. So, yeah, a lot of people will just do it openly. You do have to check the laws of your State, though, because some States do require there be an attorney on your side.

David:
I’m curious. If I can ask you put a salesman hat on for a moment, to try to help with my normal demographic that I speak with a lot of service members. I always frame things that way. The knuckleheads out there, who, so going back to what Mindy originally said. In my head, if you’re somebody with money, whether it’s the husband or the wife or soon to be, and you bring up a prenup, and the other person is adamantly, vehemently against it, I view that as a red flag, like okay, well, in the case where you already have money.

David:
But in a case where you don’t have money, there’s still in either case, there’s a lot of emotions that come up when you say, “Hey, I want a prenup.” Because I can absolutely see why that would trigger the like, “Are you not in this for the long haul?” Curious, if you have any thoughts or advice on how to bring that conversation up in a way that’s not going to put you in the doghouse?

Aaron:
Yeah, yeah, absolutely. So, the advice I give might sound a little counterintuitive, but if you want to talk to your spouse about a prenup, my advice is don’t go to your spouse and say, “Hey, I want a prenup.” I think that is what turns it off. People, I think, everyone has a common conception of what a prenup is, that is based on like Hollywood and TV and celebrities and the Kardashians. And so, you bring up the idea and they think, “Oh, they either think like they’re planning for my divorce already,” or when you just say the word prenup, what comes to mind?

Aaron:
Usually, usually, it’s like an old man and some young gold digging wife, who looks like Anna Nicole Smith or something along those lines. I’m dating myself now. And they think, “How does that relate to me?” But if you just go and talk about the component parts of the prenup that we’re talking about, if you go to your spouse and say, “Hey, I think it’s a good idea for us to be transparent about our finances, and just put everything down on paper on the table, before we get married. I think it’s a good idea for us to establish bank accounts and have a conversation about what money goes into what accounts. How much access to money do you have? How much access do I have to money? How do we pay our joint expenses? Do we want to?”

Aaron:
My wife and I have a provision in our agreement where travel is our big thing that we’d like to do together. So, we wrote in a provision where 5% of all of our income will be set aside for our travel funds. So, whenever we want to travel, that money is there. For some people, it’s that first rental property that they want to buy or it’s saving up for the house or saving up for the baby, planning in or retirement. Planning in how they want to spend their money, save their money over the course of the marriage. Or then, even if things go wrong and you don’t work out, can we agree what would be fair ahead of time, so that we don’t have to pay that money to lawyers when all the trust is broken down. And we don’t communicate and we don’t like each other anymore to go fight about the money. Can we just say we both keep whatever we brought in and everything that we built together, we split 50/50, and then we can skip paying 20% of our net worth to lawyers on the back end.

Aaron:
So, I think if you just talk about the component parts, should we be transparent with each other? Should we come up with a plan on how we spend money during the marriage? Should we come up with rules where one spouse can trigger counseling provisions? Can we agree that we’re each going to have X amount of life insurance with the other person as a beneficiary? And then maybe after you’ve gotten a number of these yeses, can we also just be realistic and say, “Hey, a third of our friends are getting divorced or in marriages that have ended. Can we just agree now, what would be fair if things didn’t work out?” And if you agree on all of those different things, “Can we just document this? I talked to a lawyer who says it’s a good idea to put these things down on paper.”

Aaron:
You don’t ever have to even mentioned the word prenuptial agreement to get agreement on all of the different pieces of it. And then if the final step is, “Let’s put this down on paper and make sure that we’re committing ourselves to it legally,” then I think it’s a much easier sell at that point.

Mindy:
So, back on Episode 24 of the BiggerPockets Money Podcast, we had Erin Lowry on and she said, and I’m going to mangle this quote. But she said, “You already have a prenup, it’s the divorce laws in your state. If you don’t want somebody else to dictate how your money is divided, then you need to do it with a prenup.” And Erin is not an attorney, so I’m going to check in with you, Aaron. Is that correct?

Aaron:
Erin is a wise woman, because let me tell you that is exactly correct. In fact, I’ve got a YouTube video and I’ll share the link with you and you can give it to your listeners. That is basically entitled, Even If You Don’t Have A Prenup, You’ve Got A Prenup. And the message is exactly that. If a prenup is essentially just a set of rules that governs how your finances are treated if things don’t work out then you’re either doing that or you’re either choosing those rules on your own or you are allowing the state that you live in to choose those rules.

Aaron:
And let me tell you, the states rules that you are probably defaulting to are some of the most unintuitive and potentially unfair things that you can imagine. So, every day, people that are getting divorced come into my office and say, “It’s okay, because we’ve kept everything separate. The house is in my name and I pay the mortgage, and she kept her retirement in her name.” And then when I have to tell people that it doesn’t matter. And this is in all in 50 states, it does not matter whose name is on a bank account, it doesn’t matter whose name is on a retirement account, it doesn’t matter whose name is on a piece of property or a mortgage, if you acquired these assets during the course of the marriage, it’s considered marital property. Regardless of who paid for it, regardless of who are in the money. All of those things are lumped in together.

Aaron:
And for a lot of couples, this the first time they heard, they’ve been married 20 years, and they’ve been paying all the expenses associated with this mortgage or this rental property all along that time thinking that they’ve protected it by keeping it only in their name. Only to find out and they come in, they said, “What do you mean he wants half of my retirement? What do you mean she wants half of the equity in the house that I paid 100% for?” And finding that out after 23 years of marriage is heartbreaking. And there’s a different way to do it.

Aaron:
The way that I recommend that my clients do it is let’s flip the script and make the default what most people think. So, if I go get a rental property, if it’s meant to be a joint asset, we’ll put it in joint names. If it’s meant to just be my project or your little project or my side business or your side business then we’ll put it in separate names. And that way everyone knows where they stand at any given time with respect to the finances, based on how something’s titled.

Aaron:
And so, if you’ve got your separate accounts, those belong to each of you and if you got a joint account then that belongs to the two of you. And you split what’s in joint names 50/50, and you keep what’s in your own names to yourself. And it makes the untangling if things go south, much, much easier, but it also makes managing it during the marriage itself a lot easier as well.

David:
I love so much of this. So, one of the things that I always tell people when they’re filing for LLCs in a partnership is that you need to plan for the dissolution of that LLC immediately because you’re amicable now. But when things go really south that’s when things get ugly. And you don’t want to be trying to figure out how do we solve this? How do we resolve this then? Sounds like a prenup is essentially the exact same advice as that. So, when I put it that way, it’s like, “Oh, you’d be silly not to get this.”

David:
But I want to just throw something else out there, we mentioned, Mindy mentioned the income disparity where her husband at one point was making four times as much as she was, whatever. So, my wife and I are in an interesting situation financially where incomes aside, she is much more risk averse. So, she is very frugal, no debt, cash, more of the Dave Ramsey philosophy of finances. And I’m like leveraged to the hilt, how low can my downpayment be, buy everything and hold it till I die, whatever.

David:
And so, we have, no, I don’t say issues, but our view on finances is very different in that regard, where if I see $5000 in a bank account, I’m like, “Oh, I can invest it somewhere and I’ll figure it out.” And if she sees $5000 in the bank account, she’s like, “Oh, I should probably save some more money.” And so, I think this is valuable not just from the income disparity, but from the spending habits disparity because two spouses, we both make $5000 a month. At the end of the year, one may have $40,000 of that sitting in a savings account and the other may have $2000 sitting in a savings account. And it’s like, “Well, now, if we split, I don’t want to be stuck giving them $20,000 because they didn’t save.”

David:
So, I love all of this and I just wanted to throw that out there that this is awesome. I am curious, what if, and I think we were going to get into this anyway, so I hope I’m not jumping ahead. But what if, so Mindy and I were both in similar situations, it sounds like. I had a negative net worth when I got married, and my wife had student loan debt and worked at a high school. And Mindy and her husband were not financial gurus at that time. And so, I’m curious what it looks if somebody or if there’s even an option. I’ve heard the term postnup, but what that looks or when that is or is not viable? When you’ve been married for six years and you’re like, “Hah, there’s a lot more money involved in this than there used to be it.” Curious if you could just talk me through a postnup and when it’s appropriate.

Aaron:
Yeah, absolutely. So, we do a number of postnups and they come in a couple of different varieties. So, a lot of the postnups that we draft, just to be honest, are people who wanted a prenup and just got caught up in the wedding planning and didn’t get it signed until after they got married, so they’re just doing a postnup because they’re doing a prenup late. But for a lot of couples, the postnup acts as a reset. It’s a couple that recognizes that something is broken with the way that they handle their money and they want to be able to have a better situation.

Aaron:
And so, people have come to me in situations, I’ll give you a common example that might relate to some of your listeners. A couple gets married and one person, one spouse already owned a house and the other one is moving into the house that was owned by the other spouse. And the spouse that’s coming into, let’s say, the husband is moving into the wife’s condo that the wife already owned prior to the marriage. And the husband is paying half of the bills and half of the rent, but it’s like, “Wait a minute. Am I even getting any equity in the house?” And the wife is like, “Well, I already had half the mortgage paid off before you moved into here, so it wouldn’t really be fair for you to just come in and get 50% ownership of what I’ve been paying on for eight years now.”

Aaron:
But the husband doesn’t want to feel like he’s just renting and making the wife rich in her condo. And so, we’ve done situations where we’ll say, “Okay, let’s section off. If the house is worth 100 grand and there’s 20 grand equity, then the wife would just own 20% of the house, no matter how much it increases over time. She’ll own the first 20% off the top of the house. And now that you guys are married and you’re splitting the bills, any equity above 20% of the value of the house that you build up is going to be split 50/50.”

Aaron:
And now all of a sudden, now, the husband doesn’t feel like he’s just throwing his money away to give rental income to the wife and the wife doesn’t feel like she’s giving up the equity that she’d already built up in the house before the husband moved in. And they both have a fair situation, and so often, couples will come to me and say, “We’re in crisis. We’re in financial crisis. We don’t want to get divorced. But something’s got to be fixed in terms of the finances.”

Aaron:
And because I’ve seen so many of these situations over the years, I can usually suggest some compromise that will help get the couple back on track. We’ll draft it. We’ll put it into a postnup. And the couple can sign it and hopefully, it acts as a way to save the relationship. But also, if things don’t work out, then at least they’ve got a game plan for, “Okay, this is we know what, who owns what and how things will be divided in the unfortunate event that things don’t work out.”

Mindy:
Okay. Now, tagging off of David’s “how do you bring up the prenup question,” how do you bring up the postnup question, when only one of you is thinking about it?

Aaron:
Yeah. I think that it would be the same process of discussing the prenup, which is very carefully. I think that if you just come out of the box. I don’t think that people hate what prenups can do as much as they hate the word prenup or postnup.

Aaron:
And so, if you don’t make that the front end of the pitch, it will be better received if you say, “Hey, we seem to be having some tension around money. We’ve had fights about money the last three weeks. I’m feeling some way, you’re feeling some way. Can we get some help as to how we can meet in the middle and find out what is a fair way to handle our finances? And oh, by the way, I know this great attorney, Aaron Thomas, who I know has helped out other couples in this situation.”

Aaron:
Or have a listen to this podcast and learn some of the benefits that can be gained from getting a postnuptial agreement after you’re already married. And you’re going down one path and somebody is not feeling like they’re being treated fairly. Oftentimes, both spouses don’t feel like they’re being treated fairly, financially. And, “Let’s get somebody who can act somewhat as a neutral and help us figure out what’s a good setup for managing our finances and reducing some of the arguments we’re having.”

Mindy:
Now, let’s talk about money. But not in the context that we’ve been talking about. How much does something like this cost? And what timeline are we talking about it taking to start to finish? Are we looking at a three-month process, a 20-minute process for the postnup and for the prenup? Is this $1000? Am I investing $10,000 in this document a month’s worth of back and forth with you? Or I’m sure everything’s different, because everybody’s different, but what’s a ballpark?

Aaron:
Yeah, yeah. Right now we do prenups and postnups for a flat fee of $2500. I know the way that I like to explain to people is the average wedding budget today is 25 grand, so this is a piece of that and just budget it in. And we’ve turned them around in a week. I’ve had people come to me and say, “Hey, I’m getting married. We’re going to Vegas on Saturday.” Usually, the longest part of the prenup is or the postnup is getting people who have not paid a lot of attention to their money to actually sit down and write down all of their assets and debts in one place.

Aaron:
Now, Mindy, I know you for sure, probably have a spreadsheet that you know where every dime and everything goes. And you carry the one and it’s all tallied up. But for a lot of couples, especially those who are having challenges with the intersection of the relationship and their finances, this may be the first time they’ve actually put everything down on paper in one place. But we can turn them around. Generally, I like to say budget at least a couple of weeks, the sooner prior to the marriage that you start the process, the better, in my opinion, because it gives you plenty of time to sit down and discuss. And have conversations about how you want your money to be handled.

Aaron:
But the process does not take a ton of time. Usually, two to three meetings with me in my office and filling out the questionnaires that we provide people to fill out. I’ve even got some things that people can do to learn more on the front end on the website on prenups.com. We have a free Ebook that is entitled, Seven Financial Strategies For Building A Rock Solid Marriage. You can get it for free on the website. And I like to tell people, even if you don’t get a prenup or postnup, you were saying earlier, Mindy, just have the conversations. You’ve got to have these frank conversations about money, and it’s just going to be so much better than sticking your head in the sand on these issues. Whether you decide to get the document or not, it’s worthwhile to have the conversations.

David:
In a lot of ways prenup/postnup, almost sounds like a trust. It’s similar price point, similar timeline, whatever. But people think of a trust and they think of estate planning, but when you really dig into trust, it’s like, “Well, you can set all kinds of ground rules for how the money is to be treated, where it’s to go, and you need to meet this box in order to check this widget to do this thing.” And unlike an LLC where you can’t really do anything. You’re just like, “Okay, this is our agreement.”

David:
The prenup/postnup almost sounds like that for a marriage. So, I had the three account things, for example. I just heard about this yesterday, on TikTok of all places, for the first time in my entire life. Although he said four accounts, he did a joint account, two separate accounts, and then a forced savings account. It sounds like your travel plan 5% that. But it blew my mind, it got me thinking and now, we’re having this conversation. I’m like, “Oh, my goodness.”

David:
It’s almost like a trust, where it’s like “Well, hey, if one person wants to go to counseling, you’re going to counseling. And if your finances do X then we need to tweak why.” And laying those ground rules out, I don’t know. I don’t see any reason for anybody to not do this. And my question would be, is there any situation where this doesn’t make sense? And there’s not a reason to get a prenup/postnup?

Aaron:
Yeah, yeah. A great question. I’m so glad you asked that because I think a lot of the people listening to this are going to say, “Well, I’m 28 years old. I don’t actually even have any money. We don’t have a ton saved up. Why would we get a prenup?” And there’s a couple of things on that and this is touching on something else that you brought up, David. The comparison to the business agreement or the LLC, I love because the way that I to describe it is, it’s two-fold.

Aaron:
One is we totally today, we underestimate the complexity of our financial lives. People say, “Oh, I don’t really have anything. I just got this and that and this and that.” When our parents’ generation got married, so I’m in my 40s, and my parents got married when in the 1960s. And when they got married, first of all, the average age of couples getting married was 21. Usually, the husband was 22 and the wife was 20, so they were very young. Credit cards didn’t even really exist back then. They were just coming around. Student loans weren’t insane like they are today. Usually, you just work your way through school and not have six figures of student loan debt.

Aaron:
People had at most one bank account. People usually were going straight from living with their parents to getting their first house together, so they really were a blank slate. The couple getting married in the 1960s was two people starting a startup business together from a complete scratch from zero. The couple that’s getting married today, the average age is 29 and each spouse usually has four or five credit cards. They’ve usually got four or five bank accounts. They probably got a couple of retirement accounts because they didn’t roll over their first 401K into their second job because people change jobs more often today. Usually, one or both spouses has a mortgage, but one or both spouses has a car note, student loans.

Aaron:
And so, whereas the couple in the 1960s getting married, it was like a startup. A couple getting married today, it’s like merging two already formed corporations into one. And you’re doing it, and besides all the assets and debts because people are getting married later in life, they usually get a decade of financial habits that are baked into their lives. Because they’ve been living on their own outside of their parents house for a decade and before they got married and so. And you would never merge two corporations without some business agreement without some plan for what would happen if they get dissolved.

Aaron:
And people talk about making big financial decisions. There’s a thing, a quote about the biggest financial decision you’ll make your life is buying a house, wrong. It’s getting married. It’s getting married is the biggest financial decision you’ll ever make. And so, the idea that you do that without some planning, again, whether you get a prenup or postnup, you’ve at least got to sit down and have a plan for how you manage your finances. And so, to the couple that says, “Well, I don’t have a ton of money,” it’s not about what you have coming in. Number one, it’s about what you could potentially have if the marriage doesn’t work out. That’s where all the money is going to be lost is on that back end. So, couples that don’t have a lot of money at the beginning, that’s not a reason to avoid a prenup or postnup.

Aaron:
And, I would say, to me, when I hear is there a reason for not getting a prenup or a postnup? In my mind, I hear is there a reason for not planning out how you’re going to manage your finances during the relationship? Is there a reason not to get on the same page about how your accounts are going to be set up? Is there a reason not to be transparent with your spouse about what assets and debts you’re bringing into the relationship? And so, if $2500 is just so far outside of your economic resources, certainly, I understand that. But you can sit down and use a pen and paper and at least have some of these discussions and come to some agreements on your own.

Mindy:
So, when David started comparing marriage to a partnership and an LLC that was a light bulb moment. “Oh, my goodness, I spent so much time in the BiggerPockets forums, talking to people about structuring their partnerships. Hey, I’m getting ready to partner with somebody on a real estate deal. Is there anything I need to know before I do this?” And I’m like, “Yeah, you need to get…” I’ve said this, I’ve said this and I can’t believe I didn’t make the connection until just now.

Mindy:
I’ve said, “You need to put everything in writing before you buy the property, before you are financially obligated together while you’re still friends.” Because, “Hey, David, let’s partner on a deal. We’re great friends. We’re going to make so much money. This is going to be so great.” And then, we partner on a deal and “Oh, wait. David wants to do this stuff and I don’t want to do that stuff. Man, I wish I would have talked to him about this before what are our plans for managing this property? What are our plans for managing our money while we’re married?” The parallels are so crystal clear now, and I feel like a fool for not seeing it before. David, you’re brilliant. I feel like an idiot.

David:
I don’t know about that to retract a brilliant statement. I’m just going to-

Mindy:
You’re the okay-est co-host I’ve ever had.

David:
So, to create a laugh here, you’re talking about the LLC and we talked about all the “if something goes wrong,” all the ways that you mitigate that, right?

Mindy:
Yeah.

David:
And you have to plan that out. Well, you know John.

Mindy:
I do know John.

David:
So, you’ll get a kick out of this and the audience will love this because this just shows how goofy and quirky I am in my, whatever. So, we have… well, we’re in two LLCs and whatever. But one of them is just John and I, the others, three of us. The one that’s just John and I, we have all of the normal mitigation measures. The last bullet point we can put in if all else fails that John and I will have a duel with paintball guns. And we put in a score system, a point system, how much ammo, how many paces, the whole nine yards. So, I just thought that was funny.

David:
There’s really no value add to that other than at least we thought it through on all the other things, but that’s in there. So, if you ever see John, you should ask him about paintball duels and LLC.

Mindy:
I don’t think I’m ever going to see John in real life. I’ve been so close so many times. John is my lender and David’s partner, real estate partner. But yes.

David:
I love all of what we’ve talked about.

Mindy:
I do, too. This has been fantastic. I wanted to make one more point before we get away from it, though. When I asked how much it was, you said $2500. That’s what your firm charges and I’m assuming that you’re going to be like that’s going to be a normal fee. You’re not going to be like, “Wow, everybody else is a $1 and you’re $2500 or everybody else is $10,000 and you’re $2500.” I’m assuming that’s going to be middle of the road purchase or price tag. What I wanted to say is how much is the divorce? It’s 50% of whatever you’ve got, right?

Aaron:
Yeah. The average cost just for the lawyer’s fees in a divorce is 15 grand per spouse and-

Mindy:
Per spouse.

Aaron:
Per spouse and that’s the average. There’s some people that do it uncontested or they agree and it’s fast. But there are also ones that go to $75,000, $100,000. I’ve worked on the case where one spouse alone dropped a million dollars in attorney’s fees over the course of the relationship. And man, even if his prenup costs 10 grand instead of $2500, it would have been worth it. Obviously, he had a lot of assets to be able to spend that much in fees. But it is to your point, it is a fraction of the cost of a divorce.

Aaron:
And beyond the difference and the financial cost, the stress and strain, the uncertainty, the leaving it up to a judge, a complete stranger who knows nothing about you or your life and is going to hear each of you. You and your spouse talk for a few hours and make a decision that impacts your entire financial future. Gosh, I’d sure like to put that back in my hands, rather than leave it up to chance. So, in my view, the cost is well worth it.

Aaron:
I don’t ever plan on getting a divorce, but I’ve already seen tons of benefits of having these conversations and getting on the same page with my spouse in terms of how it plays out in our relationships. So, hopefully this is a benefit to some of your listeners. Hopefully, somebody who’s listening right now is going to go sit down with their spouse and say, “Hey, we’ve got a few things we need to talk about.”

Mindy:
I hope so.

David:
Well, obviously this isn’t the example. But I just laughed when you said the million dollars on a divorce. My thought process immediately went to the fact that MacKenzie Scott is the third wealthiest woman in the world because she divorced Jeff Bezos. And obviously, she had a lot more to do with all of that. I’m not saying she deserves no credit, but it’s like if you think about from the standpoint of somewhat like, “Holy crap, divorce.” I can only imagine what fees went into all that. And so, you’re absolutely right. Planning ahead is so much more affordable than not planning ahead.

Aaron:
Absolutely.

Mindy:
Aaron, this has been a very enlightening episode and I really appreciate all that you have shared with us. If somebody wants to get in touch with you, where can they find out more about you?

Aaron:
Yes, so if you want to learn more about me, if you want to learn about prenups or postnups, you can go to prenups.com, P-R-E-N-U-P-S dot-com. And there’s also links on there to YouTube page. You can download the free E-book. And if you’re in Georgia and you want to hear about our other family law services, you can find me at aaronthomaslaw.com.

Mindy:
Aaron, this has been fantastic. Thank you so very much.

Aaron:
Thank you so much for having me on this. It’s been a blast.

David:
I was just going to ask if we’ve missed anything. If there was any question that you think is worth tagging on before we get off because as much as we’ve probably gone longer than we normally do. I am loving this and learning so much. So, if there’s something we missed, I would love to hammer it out before we let you go.

Aaron:
You guys ask the right questions. And let me get my pitch in. The one parting thought that I would leave people with this is just to improve your communication about these things. Marriage, it’s the most important financial partnership you’ll ever have and it deserves a conversation.

Mindy:
Oh, I love that.

David:
Love that. Yeah.

Mindy:
It’s so good.

David:
You’re going to mark that as a quote. You better mark that as a quote.

Mindy:
Yeah, I’m going to.

David:
Aaron, this is awesome. I’m going to probably hound you sometime after the show and see what it’s going to take to get you to come talk to my mastermind about this, so they can pick your brain. Because this is, I’ve never thought about any of this and I know so many people, it’s the exact same thing. And my goodness. Yeah. I had no idea. You’re exactly right. What I thought I knew about prenups was what is in movies, TV and the news. And I never knew probably 90% of what we just talked about, which is I clearly get excited when I learn new things.

Aaron:
Yeah. I’m glad it’s been a help. I am open for speaking engagements, as you see, so reach out anytime, Dave. It’s been great.

Mindy:
Holy cow, David. That was such a great episode. What did you think of Aaron?

David:
It’s the second best episode that’s ever been on BiggerPockets Money right under mine. No, that was in a real note, you heard it through the show. This was amazing. It’s not very often-

Mindy:
So much good information.

David:
Yeah, it’s not super common for, not to say that I know everything, but for me to go through an episode and literally every single conversational point like, “I didn’t know that. Oh, yep. Didn’t know that. Oh, wow. And then oh, oh.” The whole thing was just goldmine after goldmine after goldmine. I loved it.

Mindy:
What a great point. What a great point. Oh, my goodness, I never even thought of it. I never made that connection, the whole time. He was fantastic, clearly has a mastery of the subject. And is not there just to push, push, push, he’s just presenting this information. Look, this is a really great thing for you to have, to help you run your marriage, to help with communication. And it’s a tool to help guide you through marriage. Marriage is hard. Marriages work and marriages work every single day and if you’re not doing the work every single day, the harder it’s going to be.

Mindy:
And this gives you an outline or guidelines for how you should be communicating, how you should be spending, how you should be handling different aspects of your marriage. And it’s not just money. It’s “What do we do if we want to have counseling? Well, I want to get counseling and you’re not receptive to it.” Oh, he even said you’re contractually obligated. I don’t know that maybe that’s the best way to phrase it. But if that’s the way that you have to phrase it to get your spouse to counseling, you need to go to counseling. And there’s just so many good nuggets in this episode.

Mindy:
I really, really hope that if you are listening to this and you know somebody who’s about to get married that you share this episode with them. And just say, “This is not what you think it is. Just listen with an open mind.” I really loved this episode, and I really loved Aaron.

David:
Yep, I got nothing. That was phenomenal. And I agree. This was so much information.

Mindy:
He was so good. Okay, David, shall we get out of here?

David:
Not if we can interview him again, because I’m sure I’ve still got stuff to learn.

Mindy:
I know.

David:
But if not, then we could.

Mindy:
Well, he’s already gone for the day, so we’ll have to bring him back another time. We should leave for now. So, David, from Episode 301 of the BiggerPockets Money Podcast. He is David Pere from the Military Millionaire Group, and I’m Mindy Jensen saying, don’t forget to floss, albatross.