Why Asset Protection Trusts are a better alternative to Prenuptial Agreements
Today, I’m going to be talking about pre nuptial agreements and asset protection plans. When to use each and I’m going to tell you why I strongly prefer asset protection plans over pre-nuptial agreements.
It's a highly emotionally charged issue, particularly if you’ve been through a divorce and have a few dollars that you’ve managed to salvage from that awful process; or if you’ve fallen in love and you're about to get remarried.
I’m going to tell this from a man’s point of view, because I’m a man and it's a little easier, but it works both ways. In fact, the most famous divorcee in the world has used an asset protection plan instead of a prenup, and it worked perfectly.
Many people think this is a good strategy to protect their assets in the event their marriage doesn’t succeed. These types of agreements typically explain how the property will be divided and if spousal support, also known as alimony, will be paid in the event of a divorce.
Each individual may also set up their intentions about distributing property after one of them dies. This is particularly an issue for second marriages when one or both spouses want to preserve property for their bloodline children or grandchildren from a former marriage.
Depending on the state where you reside, a premarital agreement may be called a “prenuptial agreement” or simply a “pre-nup.” There is also the term “ante nuptial agreement,” which is basically the same, except it is done after a couple has been married.
Advantages of Asset Protection plans over Prenup agreements
- More effective
- Asset Protection won't destroy your partner's trust
- Keeps the relationship intact.
- Never vulnerable to U.S. judge in the case of liquidity.
Now, here’s why I like asset protection plans to prenups. First, they're very effective. If you are getting married and you’ve put assets into an asset protection plan particularly if those assets are liquid, you can totally eliminate your future spouse’s ability to get to them if things go to pieces. How?
By triggering the first rule when you fund the plan and triggering the second rule of asset protection which is, no country in the world automatically enforces U.S. judgments but simply moving the liquidity out of the United States, away from the jurisdiction of the divorce court. There are certain countries such as Belize that formally refuses to recognize you as divorce decrees.
Basically, asset protection is a great way to avoid the pain of a prenup. I once upon a time went to a wedding. My friend at the time owned a house next to the Playboy Mansion. He’s a very wealthy, major real estate developer. L.A. Philharmonic was one of the orchestras playing at his wedding.
Well, his wife who is also a friend was sitting in her hotel room getting ready when he sprung a prenup on her. Well, they didn’t get married until 2:00 in the morning. Nobody knows if she actually signed it, but we know it was a five-hour negotiation.
Prenups Will Destroy Trust
Prenups destroy trust. Honey, I love you. I want to spend the rest of my life with you. You're the only person that I really love. I will never cheat on you. You are the apple of my eye but would you mind signing this little paper? It's that if we're not married at least eight years, you don’t get more than $100,000 a year; and you could acknowledge that my son, when he graduates from Stanford, gets the car dealership, and my younger daughter is, you know, you know what I’m talking about.
Do Prenup agreements really work?
Prenuptial agreements are often good ideas. They often work, but sometimes they don’t work (just ask Donald Trump). One thing, and the only thing, you can count on from a solid pre-nuptual agreement is the guaranteed destruction of trust. To ask for a Prenup is to admit that you don’t trust your prospective spouse. This is often a wise move; however, this sure destroys the illusion of complete trust and respect most couples like to take to the alter.
To get a prenup in place the wealthier prospective spouse will normally say: “Honey, I have built up some serious wealth and thought it would be great to keep it separate property.” What the other spouse hears is “Gosh I love you, but just in case you turn out to be a loser, would you sign this so I can keep my stuff?” The “poor” spouse now knows for sure that he or she is not trusted. Simply stated: Prenups do not promote great marital relationships. In many cases, even the act of proposing one puts serious impediments to personal trust.
The new wife doesn’t feel quite as loved. The marriage and the bed becomes a lot colder. It is not a way to start a relationship by chiseling away some of the funds that in my example the wife is expecting.
Now, it's different if both people are mature and moneyed, but that’s not normally the case. So, asset protection plans do not even have to be disclosed to the future spouse; or if you want to be really tricky, you can show the future spouse that she is a beneficiary. You can say, honey, I've made you rich.
You are now the beneficiary of my asset protection plan. This thing has some money in it and you're going to be fine. Well, a week later you can change the beneficiary designation at any time. You don’t have to tell her. You're not obligated to tell her. You don’t even need her consent to do the trust.
It's a great way to take care of yourself without destroying a good part of the relationship, and I like it. They are secret. Prenups aren't secret. Prenups always require both parties to have a lawyer review it and the lawyer to sign off on it.
They are really emotionally difficult and dangerous to do unless you're really marrying somebody of equal power and equal financial means. Asset protection trusts are often more reliable and effective. Why are they more reliable?
Because you're never vulnerable to U.S. judge in the case of liquidity, you can put your money in a Belizean trust and have your assets sitting in Credit Suisse or Pictet Bank, one of the greatest banks in the world. By the way, never put your money where your trustee is.
You can put your money in a Fortune 5 bank, have your trust in a jurisdiction that will not recognize a divorce decree; and I can tell your soon to be ex-spouse, when the divorce comes is not going to be able to get to those protected funds.
So, asset protection trusts deliver. They're more flexible and they don’t destroy the relationship. I didn’t take on on purpose the issue of the client that comes to me already married and says: you’ve never met my wife, or you’ve never met my husband, I’m sick of her, she is cheating on me; or more typically, I've fallen in love with my scrub nurse- really kills me.
I hate doing this, but it is also possible to turn the tables and given enough time- years of preparation. It is very feasible to dramatically change the result, the expected result in a typical U.S.-based divorce. Not my favorite line of work.
I like taking care of people before the troubles begin, but if you're considering getting married or considering getting a divorce, don’t walk away from asset protection planning.
It may change the balance of power dramatically and may result in a very different result than you would normally expect to apply traditional U.S. theories, which almost always result in a hurtful event for my clients or a more hurtful event than if they had completed and properly nurtured an asset protection oriented pre-divorce or pre-nuptial arrangement. There will be more to come on this topic in future lessons.