Prenuptial Agreements with Kelly Frawley and Emily Pollock
Prenuptial Agreements with Kelly Frawley and Emily Pollock
I recorded this episode prior to the pandemic, and I think it’s ironic that people have talked about a potential increase in divorces after the quarantine. I guess releasing this now may be apropos for many people.
Joining me today are Kelly Frawley and Emily Pollock, partners in the matrimonial and family law department of Kasowitz, Benson, Torres law firm, to discuss the legal matters you should consider before you get into a marriage and after. Specifically, we’re talking about prenups and if it makes sense to have one before you get married. Kelly and Emily share a number of helpful lessons learned in their over 20 years of practicing law that can help you in any stage of your relationship.
What are we drinking?
Kelly - Coke Zero with added powdered collagen
Emily - Lemon Lime Schweppes
Shannon - Black Cherry Schweppes
Podcast Notes
Kelly comes from the Manhattan District Attorney’s Office, where she was an Assistant District Attorney in narcotics prosecution. The emotions are just as high as in matrimonial law, because there is a lot at stake.
Kelly liked working for the people and doing what was right for the community. As a family law attorney now, what keeps her going is knowing she makes a difference in people’s lives.
Emily was a commercial litigation associate, and she focused on securities litigation and hostile takeovers. It was the inefficiencies of that practice and the inability to work directly with clients and feel that she actually played an important role in the litigation or have autonomy that drove her to look for a practice where the cases were smaller and she could build up her own book of business.
She feels like she is now involved in a meaningful way, helping people make good decisions for themselves.
They both pride themselves on their interest in the whole picture and the whole family. They understand that their clients’ best interest is in preserving as much of that family’s relationship as possible, especially when there are children involved.
They both want to make sure their clients don’t have any regrets during the process. Kelly has been doing this for 13 years now, and she still doesn’t have an answer as to why some people behave so poorly in a divorce and it is a shock to the other spouse.
Getting a divorce doesn’t necessarily mean it wasn’t a successful marriage. Some things have a lifespan. It doesn’t mean it was a mistake, it just means it wasn’t a marriage that was meant to last forever.
Women in particular are finding that they don’t need to stick out a marriage that isn’t working, like the generation prior. Not everyone is meant to be in your life forever.
Whether or not you think you should get a prenup, or if you ruled it out already, talk to a divorce lawyer anyway. You can’t make an informed decision.
Unless you understand the law, you don’t understand what you are opting in or out of. Make sure it is someone who specializes in matrimonial and family law in your state. Remember that state laws may change from when you get married to when you get divorced.
Talking about a prenup when things are going well, shows you how much the other person cares about you. You are saving yourself money in advance, because it is much cheaper to go through a divorce with a prenup.
Not everybody needs a prenup, but everyone needs to understand how it will work if they don’t have one.
Talking about this will show you the other person’s thoughts about money and it gets you talking about future plans.
You should each have your own attorney, but the person who initiates the conversation about the prenup should pay the other person’s attorney cost. You want an attorney who is smart and reasonable. You do not want an attorney who is aggressive, because it is a happy time.
Most matrimonial law attorneys charge for a consultation, but Emily will apply that to the prenup if the couple decides to move forward.
You get what you pay for. Prenups are not moneymakers for matrimonial attorneys. Expect to pay an attorney fee of $7,500 for one party up to $15,000. There is a lot of liability for lawyers in drafting them. Kelly and Emily’s firm offers refundable retainers, where other firms charge a flat fee. The drafting attorney will charge the most.
The more the couple can do themselves, the lower the cost will be. This isn’t a bad conversation to have before you are engaged. If you start going down the road with a prenup and it is not what you expected, it is easier to pull back on the relationship.
You can have your prenup drawn up with choice of state, which will protect you if you get married in one state and then move to another state. It will control what state laws will be followed.
There are some provisions that make sense to leave open, like spousal support. If you agree on $1,000 a month and later the spouse is used to living on $20,000 a month, you will spend a lot of money on litigation.
Kelly and Emily don’t see postnuptial agreements that often. If they do, it is for discreet reasons or a life event, like there is a child or there is a new business.
Timing isn’t totally relevant. If there is not enough time to get one before a wedding, an attorney may say to come back after the wedding. Try to have this done a month or two before the wedding.
The worst thing you can do is rush through a prenup. Treat this as more important than your wedding vendors.
Prenups are the hardest things Kelly and Emily do. Sometimes they see one party being treated badly and all they can do is lay out the law and explain what the client can expect if something were to happen to the marriage, but it can be really challenging when the party you are representing is being given a take it or leave it situation.
Emily has yet to have a prenup come back to her as a divorce.
If you can’t afford the rates of the prenup, why are you talking about it? You won’t be able to address custody agreements for unborn children and it is a waste of resources. You can have these conversations without actually getting a prenup.
You can address your concerns when you have more financial resources, as a postnup. A prenup isn’t something you necessarily need if you have nothing to divide.
At the time of divorce, there are some things that would be protected without a prenup.
It is important to know what is happening in the financial area of the marriage. It is not uncommon to have a distribution of power in the marriage where one person is the money person and the other person takes care of other tasks.
If you are not the one who is the money person, you should still know things like how much your lifestyle costs, where your money is held, what kind of savings you have accrued, what kind of debt you are carrying, etc. There should not be any big surprises, when you go through your assets and liabilities.
Not everyone is the pro at being the household CFO. It isn’t a muscle a lot of women like to work, but you can’t have your head in the sand. You never know what is going to happen.
Have an account that is in your name with money you can access at any time. You aren’t being sneaky, but it is money available that you can use if you need it and it can be recalculated and added into the marital assets during the divorce.
When you have your own financial independence, your relationship may be better off.
Takeaway: My biggest takeaway is that as much as relationships are emotional, they also have tremendous financial implications. It makes sense to consider those implications before being too swept away by the emotions, both positive and negative.
Random Three Questions
If you were not doing what you are doing, what else would you be doing?
What is a show you like to binge watch?
What is a food you hated as a child and do you hate it today?
Connect with Emily and Kelly
Website: https://www.kasowitz.com/
If you have any topics you would like me to cover on this podcast, or If you’d like to get in the financially naked hot seat, I encourage you to email me to Shannon@fingyms.com, or join the private Martinis and Your Money Facebook group, and let me know what you want to hear.
If you’d like to talk to my team at the Financial Gym to help you and your significant other manage your finances, we’re offering a number of great deals right now. While you’re quarantined from home, our team is happy to help you make your plan and take money stress off your plate. So head over to, or send friends to, financialgym.com to get set up today.