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Add a prenup to your retirement plan

By Jennie L. Phipps ·
Tuesday, September 28, 2010
Posted: 4 pm ET

If you are getting married, especially for the second or third time around, part of your retirement planning should likely be a prenuptial agreement.

Prenups for retirees or those close to retirement are becoming increasingly common, says Marlene Eskind Moses, president of the American Academy of Matrimonial Lawyers and a family law practitioner in Nashville, Tenn. More than 36 percent of members of the AAML say they've seen an uptick in clients seeking to protect retirement income before they tie the knot, she reports.

"There's a 100 percent chance you're going to die and a 50 percent chance that you are going to be divorced," Moses says.

Those are pretty lousy odds, so ironing out who gets what part of that possibly significant pot of money that constitutes retirement assets before it gets ugly is only common sense.

The possibilities includes agreeing to keep any retirement plans, including pensions, IRAs and 401(k)s acquired before the marriage, totally separate. Or the couple may agree that retirement plans acquired before the marriage remain separate, while those assets added after the marriage are joint. Or they can decide on a totally what's-mine-is-mine and what's-yours-is-yours policy.

Any of these approaches may involve -- depending on state law -- signing not only a prenup, but also a waiver of spousal rights after the wedding, Moses says.

Enforcement of the agreement -- should things come to that -- probably requires that couples keep their accounts straight and that marital funds not be used to contribute to or pay expenses related to plans from which the other spouse won't benefit, she adds.

Moses doesn't pretend that there's much room for hearts and flowers here. "Falling love is romantic," she says, "but paying the bills is pragmatic."

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