Grey Divorce (Part 3)

Nov 2, 2021

Prenuptial is a dirty word … right? Not so much. Listen how a prenuptial can make a divorce easy (or sometimes hard) as the lady lawyers from discuss in part 3 of our 3-part series on grey divorce.


Susan Reff: On today’s podcast, we’re going to talk about the third part of our gray divorce series that involves prenuptial agreements, and Tosha is here with us again as our expert on estate planning and probate matters. And interestingly enough, kind of how pre-nups fit into that. Those areas of law so welcome. Hello, Tosha.

Tosha Heavican: Thanks for having me.

Tracy Hightower-Henne: So also big news in our office is Tosha has been voted as the winner of the best of Omaha in estate planning as well. Yeah, that’s amazing. Yeah. And second year in a row? Yes.

Tosha Heavican: Yeah, it’s the second year.

Susan Reff: At what point does it become a streak at two years, right?

Tracy Hightower-Henne: Yeah, it’s a streak and not. We’re not talking about nude running right across to

Susan Reff: You’re not streaking. Well, maybe

Tosha Heavican: I’m trying to remember if I ever did that in my life, I feel like I would remember if I did it. Yeah, I don’t think. I think it’s

Tracy Hightower-Henne: Hilarious. Done? Remember, you can’t remember if you don’t remember, right? I don’t think you’ve done it. Let me

Susan Reff: Think about ever like in

Tosha Heavican: Like knowing me, I probably didn’t ever do that. I feel like there’s going to be like 20 people that write to us and are like, No, I was there.

Susan Reff: Their memory is better than yours, right? Have you ever streak, Tracy? Oh, like, I feel

Tracy Hightower-Henne: Like that’s like a big deal. Like, yeah, in like, I’m talking about streaking at a football game when the stands are full.

Tosha Heavican: Oh, no, no, I’m not done that.

Susan Reff: Oh, yeah, but but they’re striking miners streaking. I don’t know. Like, like

Tosha Heavican: You take your shirt off and run down the street with your friends or something.

Susan Reff: Yeah, oh, I’m thinking like college frat parties. I don’t know.

Tosha Heavican: Like, Susan is showing her true colors. I feel like they’re hot for streaking.

Tracy Hightower-Henne: For it to be considered streaking. There needs to be some sort of

Susan Reff: Public nudity part to it. Yes. Needs to be in public. It’s not running from your bedroom to the bathroom. I have never streaked.

Tracy Hightower-Henne: Have you wanted to?

Susan Reff: I don’t think so. Like an urge. No, no. I’m not really a naked person. I don’t. I don’t like showing, my

Tracy Hightower-Henne: Gosh, I can’t remember she hasn’t done

Susan Reff: It or not. I’ve I’ve never even been skinny dipping. Never what I know. Weird, huh?

Tracy Hightower-Henne: I mean, I do it all the time at my house.

Susan Reff: Well, it’s not a private. Skinny dipping is different. I never is it? Yes. I think when you play the like, never have I ever. And someone says skinny dipping, they don’t mean like, go in your own private pool or hot tub. Think they mean like at a party or with friends or at a hotel or something like that

Tracy Hightower-Henne: Where you like jump over the fence at night, break in to the public

Tosha Heavican: Pool. I do know that would be one for sure prerequisite. It would have to be dark outside for me to do it. Not during the day.

Susan Reff: And pools always have those like safety lights that are, like really

Tosha Heavican: Bright

Tracy Hightower-Henne: And they come on when when there’s movement. So yeah, it’s going to be dark. And then all of a sudden you’re like naked. And there’s the security light

Tosha Heavican: And everyone from their apartment comes out onto their porch and looks down at you. But kind of

Tracy Hightower-Henne: Once you’re in the water, though, it’s pretty, you know, blurred out

Tosha Heavican: Kind of maybe

Susan Reff: Getting out of a swimming pool.

Tosha Heavican: I’d be using the stairs I would be using with no

Susan Reff: Clothes or not. Yeah.

Tracy Hightower-Henne: So Tosha is on a winning streak of the best of Omaha,

Susan Reff: But not a streaking streak, right? All right. Good job, Tosha. We’re super proud of you.

Tosha Heavican: Thank you. Yeah, it’s it’s definitely an honor, and I enjoy helping clients do estate planning. It’s such an important part. I think of of life, really, because if you have a good plan in place, it makes things a lot easier in times when you need it to be easier.

Tracy Hightower-Henne: And I think it’s important to know that you don’t need an estate to have an estate plan correct.

Tosha Heavican: So much about estate planning has really nothing to do with how many dollars or in your bank account. So all shapes and sizes, we are equal opportunity estate planners here.

Tracy Hightower-Henne: I think everyone knows already, but Susan’s getting my cats. That’s in my estate plan.

Susan Reff: Yeah, I I’ve been bug eyed. I’ve been trying to do this. Yeah, I as I’m like bemoaning all the cat hair I already have at my house with my my two cats to get two more cats.

Tracy Hightower-Henne: Well, once one sheds, isn’t it all the same?

Susan Reff: It’s just the volume. Yeah, double.

Tosha Heavican: You have to get one of those fancy Roomba vacuums.

Tracy Hightower-Henne: Vacuums every day, and then the cat sits on top of it, yeah, and around those are my favorite YouTube videos.

Susan Reff: Yeah, the actual Roomba vacuum, like the ones that get the best reviews, are really expensive.

Tosha Heavican: They are. We have we have one that is not that brand. I don’t know what brand it is, but we’ve had it for like seven or eight years and it’s worked great. Huh.

Tracy Hightower-Henne: So Susan and I used to in our old office, find cat compilation funny videos on YouTube and just sit and watch them and laugh and laugh and laugh. We need to do that again.

Susan Reff: We do that with my kid now.

Tracy Hightower-Henne: I watch cats that way. We don’t do them together anymore.

Susan Reff: Well, we don’t even have time to talk about like the stuff that we need to be talking about.

Tracy Hightower-Henne: I think everyone’s mind we should fit some funny cat compilation videos into our lives again.

Tosha Heavican: Put it on the calendar.

Tracy Hightower-Henne: I’ll just start playing them in the TV, in the conference room. There you go. Ever wants to come in?

Susan Reff: We’ll do it during the podcast. Like right now, can you start it right now? Sure. Ok, so let’s talk about prenups, though, and pretty prenuptial agreements kind of sounds like a dirty word. Sometimes people think write like

Tracy Hightower-Henne: A dirty

Tosha Heavican: Word. I get that a lot where people, you know, they say, Well, I, you know, either I’m thinking about getting a prenup, but like, is that like, I’m just setting myself up for divorce, right?

Susan Reff: Or am I going to make him mad

Tosha Heavican: Or her mad? Right? It’s usually either that or sometimes which I feel like maybe is more typical of what people think when they see in the movies or whatever, where one one side of the pending marriage their family maybe has assets or money. And so the family is really kind of pressuring one of the spouses to get into some sort of a premarital agreement to protect those family assets.

Tracy Hightower-Henne: So I have a story. This literally just happened last night. So my mom is dating, right? And I was at her place to see my nephew last night, and she goes into her bedroom to talk on the phone to her friend so I can only hear her side of the conversation. And she’s explaining her boyfriend to this friend, and she says, Oh, I’m going to Vegas with another friend. And they were all joking that Paul and I should just elope. And I was like, No mom, you have to have a prenuptial agreement first. And so she’s describing this story to her friend on the phone, and I’m listening and shaking my head like, Yep, I told you that. And then, she says to her friend, and Tracy said she would even pay for it, and I was like, Whoa, whoa, whoa. I don’t think I said that.

Susan Reff: Yes, you

Tracy Hightower-Henne: Did. So anyways, I like I feel the importance of prenuptial agreements. I don’t think my mom is going to elope or get married anytime soon, but I am the family member pressuring, and I think it’s really important. And she was a gray divorce. So, you know, talking about this and thinking about all of the things that can be considered and should be considered in a prenuptial agreement is really important.

Tosha Heavican: Well, and I think to kind of turn turn those feelings or that that thought process around a little bit rather than seeing it as this negative. You know, if we get a prenup, we’re automatically going to get divorced mentality. I see prenups as a way to open more doors for purposes of estate planning. So if you listen to our, you know, Series two on on this issue in terms of estate planning, you heard us talk about how if if you’re in a situation where you are married, you have certain rights under the estate planning laws in Nebraska. And so then if you get divorced, your rights obviously are going to be greatly diminished. So if you then are getting married to somebody new, once they become a spouse, then they’re going to have the same rights as your new spouse that your former spouse would have had a lot of spouses running around here. But my point is that in order to potentially navigate away from what spousal rights are under the statute, if that is your goal, the only way to ensure that you can do that is to have a premarital agreement. So you sign the agreement, which says that we can alter the rights that a person would have once they’re married. And then once you’re married, you do an estate plan that the two of you can agree on that say, OK, yes, this is what we want to do. Obviously, it doesn’t comply with law, but we can do that because we have this premarital agreement.

Tracy Hightower-Henne: And I think, you know, I had a client once one of my very favorite clients. She was on her fourth divorce. Of course,

Susan Reff: She was your favorite client.

Tracy Hightower-Henne: And she she had never had a premarital agreement or prenuptial agreement. And this was a longer term marriage. And I joked with her, I said, The next time you get married, are you going to have a prenuptial agreement? And she was like, Oh, Tracey, I’m not going to get married again. Did you think that, you know, after your second? And third, and she’s like, yeah, so it’s, you know, having that conversation, like even on multiple marriages can still be a longer term marriage. And you know, this woman has some adult children that I think every time she gets married, they’re like going, What’s going to happen? You know, because that new spouse can end up taking all of the assets that originally probably you intended for your adult children and not your fourth husband.

Susan Reff: So a prenuptial agreement just to get down to the basics is really just a contract between the two people who are going to get married, right? That is

Tosha Heavican: Correct. That is correct.

Susan Reff: So it follows contract law that you know there needs to be certain things within that document to show that it’s valid. And, you know, if it were ever to be challenged in court, the judge would look at those specific or like general contract terms to make sure that it’s enforceable and it was entered into without coercion or anything like that. But that’s what we see. Sometimes when we think about prenups being kind of dirty is like the person with all the money, like forcing the other person to sign it,

Tosha Heavican: Like 12 hours before the marriage or something right

Susan Reff: Outside the church.

Tosha Heavican: Right, right. Oh, by the way, can you sign this? Yeah. So in terms of kind of a basic understanding of premarital agreements, the number one thing I would say is we have an emphasis on the word pre pre. So in the state of Nebraska, you have to do it before the marriage. Nebraska does not allow post nuptial agreements unless they are part of a divorce proceeding. So once you are married, you can no longer do any sort of a prenuptial agreement unless you are getting divorced, because then it’s considered a property settlement because you’re separating.

Tracy Hightower-Henne: I think we just had a potential client call in. I think I saw this in the intake and wanted to amend their prenuptial agreement, and now they’re married. Can you amend a prenuptial agreement?

Tosha Heavican: So what’s interesting is I’ve done some research and there’s nothing in the in the statutes that govern premarital agreements. It says one way or another. And I’ve seen premarital agreements where they will specifically say in them that this contract is amendable as long as both parties agree and are willing to sign it. And it’s in writing. Typically, we’re going to witness those signatures so that it would be notarized. There wasn’t any case law really, either that I saw in terms of where a case went before a judge and a judge decided whether or not an amendment would be enforceable. So and sometimes too, we have to think about, you know, logistically. If there isn’t a problem and both parties are agreeing to abide by it, then the judge probably isn’t going to make a stink about it, right? They’re not going to create a problem where there isn’t one. So it’s it’s an interesting gray area of the law in the sense to see what I did there.

Susan Reff: Yeah, good one gray, but not gray.

Tosha Heavican: Right? So it’s an interesting question as to whether or not it would be enforceable. I don’t think that it necessarily harms anything in doing the amendment if everybody’s on the same page.

Tracy Hightower-Henne: But tell us, though, because I think this is important a prenuptial agreement, it’s kind of like a will. It gets drafted but doesn’t go to anyone like a judge to review and approve, right? It’ll just sit there until it’s ready to be either contested or enforced, right? Correct. So everyone’s relying on the lawyer or lawyers to review and draft this prenuptial agreement that later, well, you hope it’s going to be good. No one’s reviewing it to make sure it’s enforceable beforehand.

Tosha Heavican: That’s true. That’s true. I’ve seen the typical structure for a premarital agreement, which also

Tracy Hightower-Henne: Means don’t do it on legal zoom, correct

Susan Reff: Or a napkin, although

Tracy Hightower-Henne: We do know that wills can be done on napkins, right?

Tosha Heavican: Yes, a holographic will. So if it’s completely one hundred percent in your own handwriting, so no, typing it on the computer, I mean, what’s interesting is that the statutes haven’t caught up with technology, right?

Tracy Hightower-Henne: Every time I hear a holographic will, I think of kaleidoscopes. I’m like, Oh, it has nothing to do with that or like the stickers that are, you know, you turn them a little and

Tosha Heavican: It’s like, What does that word? Is that

Tracy Hightower-Henne: Hologram? Yeah, I think so. Yeah. But can you have a holographic prenuptial agreement?

Tosha Heavican: I don’t. I would say that that would be. The same as I don’t think that that the statutes make a distinction between one that’s written in your own handwriting versus one that is written like on a computer. I think the question is going to be as to its authenticity. Right?

Tracy Hightower-Henne: So we determine that so

Tosha Heavican: Typically in pre-marital agreements, what I’ve seen, at least in my practice, is that the document is going to say here are the two parties. They each had their own attorney, which I highly recommend. It goes to the stability and the enforceability of that document. If each person has their own advocate saying this is what you’re potentially giving up, this is what you know, making sure that that person understands what they’re signing. So and then those signatures are going to be typically witnessed or notarized. So a person’s going to check and make sure that the person who is signing is actually the person who’s part of that document. And then I’ve had some instances where attorneys have asked, like me and vice versa, where we say the attorney is also going to sign a certification, saying that they did represent this person and that they had a conversation with them about what this document means. So and the other big thing too, in terms of a structure for the the premarital agreement, the statutes in Nebraska require that there be an adequate disclosure of assets. So it goes to the knowing, right, if I’m going to marry someone and that person is asking me to waive my rights to their stuff. I have to know what their stuff is so that I know what I might

Tracy Hightower-Henne: Want it anyways,

Tosha Heavican: Right? Or am I want more of it?

Tracy Hightower-Henne: Like all of your baseball collection, your baseball card collection, don’t want it? Correct.

Susan Reff: Beanie Babies, well, funny story. While we were in Vegas when we had a little downtime, my roommate and I carry watched a little documentary on the lake. The thing about Beanie Babies and the it, you know, I was half asleep, half getting dressed and all that while we were watching it, you

Tracy Hightower-Henne: Were half asleep, getting

Susan Reff: Dressed. No, no. Like, it was a while it was on. I think I was like sort of napping in the beginning. And then it was like time to get ready to go somewhere. And so I was in the shower, blow drying my hair. All that stuff. Wow. Half asleep. I was half asleep. And then so the interesting thing, what what? My take away from the whole Beanie Baby thing is, is that Beanie Babies were one of the first companies that had a website. And so they started putting the values of these Beanie Babies on their website, which had no correlation to anything in the real world. And that’s what drove the prices up was because they were on the web. And that was the one of the first things that kind of commodity wise prices were listed on the web. Wow.

Tosha Heavican: So my grandma had hundreds of Beanie Babies. She has since passed and I remember she had a room in her house that she had. She had like, for example, she had all of the animals that you would find on Noah’s Ark. And then my uncle built her a Noah’s Ark. Oh, cool. Do you have a picture of this? Oh, I should see if I can find it. The walls are painted. She had a bunch of animals that I don’t know why they were associated with a hot air balloon, but my uncle had built her. Like this wooden? Please find these

Tracy Hightower-Henne: Pictures. We will do this on Facebook.

Tosha Heavican: Oh, it was awesome. Like she had a bird cage, like an actual bird cage. And then she had all the different bird ones in. I mean, it was a cool room. Like, I’m sure I got some of them when she passed away. I don’t know where they are now, but probably they’re worth millions

Susan Reff: And I know well. The end of the story of the documentary is Beanie Babies are worthless.

Tosha Heavican: Oh, OK, well, I have

Susan Reff: To give to give yes and to give away

Tracy Hightower-Henne: To kids. Unless someone has a Noah’s Ark and they’re missing a giraffe, they will pay a lot for

Susan Reff: It, right?

Tosha Heavican: But she had all the ones like, you know, how there was like ones for Fourth of July were like red, white and blue. And I mean, she had holidays. She collected salt and pepper shakers, too. So I have some cool salt pepper shakers. But yes, Beanie Baby Room, it was. It was sweet. It was

Tracy Hightower-Henne: Sweet. So so I want to go back to a prenuptial agreement because I’m thinking about this one case that I had that had nothing to do with Beanie Babies, but they had like some interesting collections. And it’s interesting because the attorney that will draft the prenuptial agreement is likely not the same attorney that may divorce the couple or one of the spouses, right? And but that’s the attorney that is reviewing the prenuptial agreement to see if it’s enforceable and see if there’s any questions that they can break it down, right? So a case that I had was a very short term marriage. They had a prenuptial agreement. And I remember thinking reviewing this prenuptial agreement, like these people didn’t have anything when they got married. So what was the point of the prenuptial agreement in that situation?

Tosha Heavican: I think sometimes in cases that I have seen, people may think that they are going to have money in the future. One or both I had, I had a case one time where where the two people that were going to get married, each of them were poised to have very professional and lucrative jobs. And so their thought was, you know, we want to maintain our money separate in our marriage, and this is the best legal way we know how to do that. Again, like we mentioned towards the beginning of our talk today, sometimes there’s pressure from family members to enter into some type of a contractual agreement ahead of getting married. So that would be the two situations where I would see. But most of the time, I don’t know that as part of my estate planning consultations, I mean, typically the situation where I’m recommending a power, excuse me, a premarital agreement is a situation like you mentioned with your mom, right where we have a great divorce and now we’re potentially going to be having a second marriage. To me, those are the situations that are ripe for a premarital agreement.

Susan Reff: But anyone can get one that’s going to get married, right, you don’t have to be gray. You don’t have to be on a second or third or fifth, don’t have to have a million dollars of being.

Tracy Hightower-Henne: Correct. I’ll tell you, though, in that case that I had one of them had amassed a business that then fell within the prenuptial agreement that that was that spouse’s asset and that the other spouse was not entitled to any portion of it. And so a prenuptial agreement in that situation made settlement very easy because we read the prenuptial agreement to a tee and decided it said the one spouse isn’t getting any of the other spouse’s business valuation. And so I think that, you know, we we reviewed that in the sense of seeing if, you know, was it done too close to the marriage? Was there or to the wedding? Was there any pressure? Did they both have two lawyers? And, you know, we had done that research, but I think that prenuptial agreements can set up a lot of expectations in a marriage, and it just because someone is interested in a prenuptial agreement doesn’t mean they’re also just assuming they’re going to get divorced. There’s a lot of prenuptial agreements that just never have to be looked at again, right?

Tosha Heavican: That’s true. That’s true. And typically, the premarital agreement is going to talk about two main life events that we’re trying to plan for. The obvious one that people always think about is we get married and then three for 10, 20 years from now, we get divorced. So then what happens with our marital and premarital assets and how are we going to split those between the two of us? Typically, there’s a conversation about alimony. Also, one thing that a premarital agreement cannot decide is child support. That’s always a determination for a court. But in terms of alimony and asset division, premarital premarital agreements allow parties to do that. The other situation that typically is covered by a premarital agreement that people don’t talk about as much is a situation where one of the spouses dies. And so especially in the context of gray divorce, that’s super important, right? Because if you have a situation where it’s a second marriage and maybe one or both parties have children from a prior marriage and maybe the assets that were accumulated, I can think of an example right now where I had a situation where we were doing a premarital agreement for a couple who were getting married late in life. They both had experienced great divorce, and much of the assets accumulated by one of the spouses was between that spouse and their former, their former wife. And so being able to preserve some of those monies for the children of that marriage, right, that it would not then go to the new spouse, right? But the only way to have those options in estate planning and to ensure that they will happen is to have that premarital agreement. Otherwise, under the Nebraska Code, a spouse, if you’re married and your spouse dies, you’re entitled to roughly half of their estate. It’s called the elective share. So in order to not have to be worried about an elective share, you have to have this premarital agreement, this contract that says, I’m willing to waive that.

Tracy Hightower-Henne: Interesting. So a lot of different document planting is really important, both integrative or situation or in a non gray divorce situation if you want to be really clear of who’s going to keep what after a divorce. So I think that the takeaway really is, again, talk to an attorney, you can talk to the attorneys without your spouse knowing or your fiance knowing. But prenuptial agreements are really important to be done on a timely basis where you’re not looking at right before a wedding, and that it also should be reviewed by two attorneys, right?

Tosha Heavican: I would agree with that.

Tracy Hightower-Henne: Yes. So one attorney representing each of the soon to be spouses. And in Nebraska, pre is the operative word it has to be before a marriage. Correct. So thanks, Tosha, for being here and helping us with our three part series about gray divorce.

Tosha Heavican: Absolutely. Thanks for having me.

Susan Reff: Thanks, Tosha.

Announcer: Thank you for listening to the Lady Lawyer League podcast. Be sure to like and subscribe anywhere you get your podcasts if you would like to learn more about our firm, Hightower-Reff Law, please visit us at H r Law We’ll see you next week.

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