Dear Rosie & Sherry,
I am a divorced woman with a stable, happy, balanced life. I recently met a man from a distant city. We fell in love but we hit a road block when he wanted to marry and merge all funds.
I have wonderful children and feel a responsibility to them. My new friend wants to "be priority" and defines that by "merging assets". I prefer a legal his-hers-and-theirs arrangement.
Am I wrong? Should I not allow money to be the factor that interferes with our potential marriage?
As someone whose legal practice focused on family law for more than 20 years and on estate administration for more than 15 years, Sherry strongly recommends that anyone who has personal assets and is considering marriage (or remarriage) consult with a competent family lawyer to determine how to best protect those assets in the event that:
- the marriage ends in divorce
- she marries someone who misrepresents his financial status
- one of them becomes disabled and must be placed in a chronic care facility such as a nursing home
- she wants to insure that her assets remain hers in the event she survives her spouse and he doesn't adequately provide for her in his will, or
- she predeceases him and wants to insure that her children and grandchildren receive their rightful inheritance.
Many people adopt a his-hers-and-theirs arrangement that you mentioned. Many of their assets remain in their own names, although they may purchase a home together, contribute to a joint checking account, and have some joint investments. They absolutely must also have a prenuptial agreement that acknowledges the separate status of the assets that are not merged, and addresses the property and investments held in joint names. In addition, each person should have a will that remains valid after the marriage, so they can provide for their children and grandchildren.
While a couple may feel very romantic and loving and trust each other implicitly, merging assets is very naive. If one of them has debts, the merged assets might become fair game for creditors. In addition, in many cases when one spouse dies the surviving spouse automatically owns all the joint assets and the descendant's heirs may be left with nothing.
One should not rely on a spouse's promise to take care of the other's children if he or she dies or becomes disabled. These promises seldom hold legal weight. Furthermore, even if your spouse sincerely intends to carry out this promise, he may become disabled or die before this can be accomplished, and his heirs (or creditors) may not be inclined to follow through on his moral, though not legal, obligation. The situation can become very ugly when money is involved and several parties each feel they are entitled to receive it. To ensure you are well-protected, you must have your own lawyer, from your own locale, without your partner having any part in that choice.
There is another factor: Because the man you are considering marrying is from a distant city, you may know very little about his background and financial situation. Based on her years of experience in situations such as the one you describe, Sherry is wary of anyone who expects a total merger of assets where their spouse-to-be has children. He may simply be financially naive, or he may be shrewdly seeking to take advantage of you. It is a good idea for you to have a private investigation firm do a background check on this man. Although this sounds very "unromantic," it will give you the assurance and peace of mind to carry through with this relationship in full confidence.
We live in a very complicated world. Our life's choices have to be guided by more than love alone. While it seems a little crass to allow money to be a factor in deciding whether to remarry, because life is so complicated it has to be a concern.
In addition, two people's attitudes about money often indicate other issues in the dynamic between them. Can your intended appreciate your concerns and work out a financial arrangement that adequately addresses them? If he cannot, or if he will not agree to a marriage unless you acquiesce to his view regarding assets, we see this as a red flag that he may be controlling, manipulative or dishonest.
In addition, while we can understand that your future husband wants to be a priority in your life, he has to expect that your children and grandchildren will also hold a significant place in your heart, and that room will have to be made for them in your relationship, as well as in your financial plan. It is a good idea for both of you to discuss your expectations regarding the role your families will play in your future marriage.
We hope that you can work out an understanding, as well as a legal arrangement, that addresses both of your concerns. A word to the wise -- don't wait until a few weeks before a wedding to negotiate an agreement and execute a will. Negotiating and drafting the documents usually takes several weeks, and is best concluded a month or so before the wedding so that you can enjoy it without undue pressure.
We wish you all the best,
Rosie & Sherry