How to Get Your Spouse to Sign a Prenup or a Postnup

[00:00:00] Entertainment Insights Don't Take Life Too Seriously Welcome to Brainsky Unleashed. Thank you so much for having me. Sure. So, you're an attorney. What's your background? Okay, so background legally, estate planning, business planning and real estate.

[00:00:45] But prior to that I had an entirely different life where I started out professionally as a communications director

[00:00:52] I owned a couple of mortgage companies and a real estate brokerage and after the 08 debacle, I went to law school and now I am a full-time attorney and asset protection coach.

[00:01:04] Oh my gosh. All right. So, asset protection coach, so you're teaching people, full-time attorney. You went? You passed the bar where'd you go to school? Mississippi College. Okay, so and that's where you went to law school? That's where I attended law school, yes.

[00:01:20] Okay, and what part of the country are you from? The beautiful metropolis of Brandon, Mississippi.

[00:01:26] Woo, happening. All right. Okay. So, you've expanded, you've got a history in finance, you've got a history in real estate. You decide I'm going to go, I'm going to pass the bar, and now you're coaching.

[00:01:40] All right. So, what we're doing here is we're talking to somebody who has lived a little bit more than just reading things out of a textbook. All right. So that's important. Yeah, that's the Cliff Notes version.

[00:01:53] Right. Of course. Well, there's only so much time you have a podcast. All right. So, you know, point being, dear audience is we're not dealing with somebody who just simply, you know, read a book.

[00:02:04] We're dealing with somebody who's been in the trenches and understands it from one aspect right up through the education that she got to be able to legally practice. This is important.

[00:02:13] Okay, so let's talk about that mode. How in the world can someone like myself, small business owner have a nice moat? And why do you want to moat? I know why I want to moat, but why, in your version, why should we all have a moat?

[00:02:28] You have to understand what your goals are. I work primarily with entrepreneurs. And a lot of times you will have someone who is great at making widgets, okay? They make the best widgets, but they may not have the business skills to actually run a business.

[00:02:42] And on the flip side, you still have a family that you're providing for with your widget business. So I really start with the individual first and find out what their goals are.

[00:02:52] If you're in business, the assumption is that you're in business to make a profit. But you also need to look at when you start the business, what is your exit plan?

[00:03:01] So when you talk about why you need a moat, you need a moat one because this is now your livelihood, you're an entrepreneur, you may or may not have a family and you definitely want to look at the success of the business.

[00:03:13] So that's the reason why you would want to have a moat. And there are so many steps in between, but I'll let you take the question. Sure. So I'm going to take a step back though because I'm curious. Obviously, you've had more than one client in your life.

[00:03:28] And so when clients come to you, what percentage would you say actually come to you and they don't have a plan? They don't have an exit plan. They didn't plan well. Is it a high percentage or most business people there, they just have it together?

[00:03:45] I would say that it's a very low percent, probably less than 5%. Sometimes you don't know what you don't know.

[00:03:53] And so when we're doing the onboarding process, there are questions that I ask. I called a decision tree and with the decision tree when we're talking about the business, I'm asking them questions like, okay, is your business an econ business or is it brick and mortar?

[00:04:08] And so that's going to guide how I work with them. Next question. Does your business require, is it public facing? Are you the face of your business? Do you want people to know that you're affiliated with the business?

[00:04:22] Because if I'm KMK and when I put my name on stuff, it sells. So is this a type of business or do you need anonymity? If you need anonymity, that's going to govern where we might want to set up business structures in Nevada, Wyoming, Delaware.

[00:04:38] And then we just kind of go down the list in terms of what your business is trying to do. Now, another thing is that we look at how you start your business because you want to do like Stephen Covey.

[00:04:50] Begin with the end in mind. A lot of entrepreneurs may be retiring or taking their savings, their pension and they're putting it into the start up of their business. What happens if the business is not successful?

[00:05:04] So these are some of the things that I kind of start talking to people about and folks find out that they're not as covered as they thought they were. Can you give some examples of what not being covered can mean?

[00:05:19] So I have one example. It was a family business. They had different types of operating entities in one LLC. And one of those entities got a judgment against it. So what did that do? The judgment was not just against that business, it was against the LLC.

[00:05:38] And so everything that was in the LLC had a judgment or lien or encumbrance on it.

[00:05:43] And so that's not a good thing because these other two businesses that had nothing to do with the incident that was the subject of the lawsuit now kind of impaired the operations and the operating capital from that business.

[00:05:56] So they thought they can kind of throw insurance at it. But insurance is not always the answer. Truth or true or false? Anyone can be sued for any reason anytime. Absolutely true.

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[00:06:27] I'm not only a client, but I even joined the team to help other business owners just like me pay only their fair share and nothing more. Go to ProfitMax.co. That's ProfitMax.co. ProfitMax.co to find out more.

[00:06:40] You can even connect with me there as you should and I'll help make sure that your tax bill is legally as low as allowed. ProfitMax, keep your catch. Astonishingly, I don't think a lot of people take that into consideration and I think you're right.

[00:06:56] I think far too many people just simply rely on what they believe is a protective insurance policy without making sure that their structure is sound enough to handle a burden. Just even taking your example of multiple things happening within one LLC. One judgment, one lawsuit wipes out everything.

[00:07:16] That's crazy. So, you know, a lot of entrepreneurs, would you say a lot of entrepreneurs have multiple projects, multiple things or they stick with one thing?

[00:07:27] It depends but you definitely run into, I run into a large number of entrepreneurs who have multiple businesses and they may be unrelated. And especially if they're unrelated but you should never have more than one operating company inside of one legal structure.

[00:07:46] One thing that I do is I show people how to use a three entity plan and so it's a blueprint and I do like a monthly seminar with the blueprint. And I show you how to get your top entity which may be your will, your trust.

[00:08:01] It could be an LLC. It could be several things but generally it's a trust because I'm working with you on your personal side first. Then the trust may own a series of holding companies or other entities and then you have your operating companies as your base.

[00:08:17] And so we kind of work out your needs based on these levels and I've shown you for each operating company how you need at least three structures to kind of, you know, put that mode around you and build in that protection. Wow. Okay.

[00:08:32] So, you're putting companies into a trust? Not directly into a trust. It depends on the needs of the individual. So say for instance, you are Sam Walton and you want to make sure that as many of your assets as possible pass outside of probate.

[00:08:51] You want the legal protections you want the tax protections so you have your asset protection team.

[00:08:57] You know, you and I are at the table we have an insurance professional financial advisor. And what we do is put together different types of structures so you may have a revocable living trust that may own different business concerns.

[00:09:13] And so what does that do one it takes it out of probate because you have something set up for trustees.

[00:09:19] You know, you have to worry about that. If you have if you need anonymity, you know, some people think I can only have one trust, you can have a zillion different trusts because there are zillion different types of trust.

[00:09:32] You can have multiple LLCs, but just really depending on what you need, we put together a full plan for you. And that is your mode.

[00:09:40] And one of the things that we try to minimize is insurance, because if you're paying say $1000 a month for an insurance premium. And I've shown you how to take legal entities and other protections.

[00:09:53] And you only need to pay 500 a month. Now you have an extra $500 a month to put back into your business. As close as King. Yeah, pay those taxes that you may be behind all all those things.

[00:10:06] Who gets behind on taxes. So how complicated is it then to to run a business when you have trust you have entities you, you have all of these different things how hard is that to balance and to manage I mean do you.

[00:10:21] If you're a small business that sounds very complicated.

[00:10:25] It sounds complicated, but think about it like this. It takes a village to raise a child. It also takes a team to build and grow a business. So as the business owner, hopefully you are not wearing all of the hats.

[00:10:39] If you're in business, you're already paying somebody insurance premiums either for company vehicles, general liability insurance, maybe a key man policy. So you already have an insurance agent.

[00:10:50] So you're making money. So you already have a banker. Hopefully, you have an attorney that you have a relationship with. And if you are serious about business, you have an accountant who's already either doing your bookkeeping and or preparing your taxes or working

[00:11:05] with tax planning. What I do is show people how to get those people at the table together at the virtual table I'll say, and work together so that you'll have a comprehensive plan, because most business owners have all these people already available to them, but they're

[00:11:22] working in silos. And so nobody's communicating. And so you have missed opportunities. Okay, so then let's kind of dive into understanding a trust a little bit better. Anything that is within a trust? Can the trust be sued?

[00:11:40] Oh yeah, a trust can be sued. A trust is like an individual, but this is what we do and you have to understand. When you set these entities up, each entity has to have a purpose. And so the trust in and of itself is,

[00:11:55] I like to think like a director the way that I set my plans up. It's like a director. It tells you what is going to happen with everything below the trust. And so the trust really does not have any operating activities. It does have decision making

[00:12:08] powers, you know, through the trustee. But you only have services and activities at the maybe the LLC level or the corporation level. Those are your operating companies.

[00:12:20] Those are the companies that are subject to liability. You're holding company does not offer services, so it really can't be sued. Well I say it can't anybody can sue anybody for any reason, but the likelihood of being able to wipe out

[00:12:37] anything within a trust in a lawsuit is very low, correct?

[00:12:41] If you set it up properly and if you follow the formalities, and that's where a lot of entrepreneurs kind of blur the lines. They don't either maybe they don't understand the formalities, or they do understand and they just don't follow them,

[00:12:55] because there's something called piercing the corporate veil. You know, you could have a business, it could be set up properly initially.

[00:13:02] But if you don't do the things throughout the year to keep your business separate from your personal stuff, if you start co-mingling funds and doing things, then people can still get at your personal assets.

[00:13:13] Right. So it's a matter of making sure that your personal assets are protected as part of creating the moat, right? Yes.

[00:13:22] Because you know, businesses they want to take their the money from the business, they want to take that same money within the business, within the operating business and reinvest in the business, but at the same time they also want to take money out because what investor,

[00:13:33] I'm sorry, what entrepreneur doesn't want to actually make money and put money in their pocket when they do it, otherwise they wouldn't be doing it. There's no motivation at that point.

[00:13:41] So you've got a plan that basically protects the business, protects the entities, protects the assets, protects the personal and you do this as a holistic service.

[00:13:56] Correct. And I do it with a team. I don't do it by myself because, you know, I can make the best plan for you legally, but I don't know what your cash flow situation looks like, what your tax liability looks like.

[00:14:09] So working with your accountant to say, hey, Sherry John Doe has reached a certain threshold. They're about to move into a different tax bracket.

[00:14:17] Well, we'll look at the services that they have maybe they have a business manager, office manager and say this is a good time to set up a separate entity, maybe a marketing company and management company to offset some of that.

[00:14:29] And so what does that do? You still have those protections and now we've reduced your tax liability. But I wouldn't have known that had I not been in communication with your accountant and had a relationship with your business manager, insurance agent and the other people at the table.

[00:14:43] So then what's the biggest mistake the rest of us seem to be making? I mean, it's you know, you've outlined a plan that sounds about as bulletproof as possible. What are we missing? Why aren't we doing this?

[00:14:55] I think people just don't connect the dots because like I said, you're already you already have this team. But you are busy making widgets. You're busy working in the business and not on the business.

[00:15:06] And I made these same mistakes. My first business venture, a lot. It was terrible. You know, I was really young. But a lot of people just don't take the time because they are focused on the creative part of the business, the thing that they like to do.

[00:15:22] Okay. Okay. So are you able to do this for everyone across the country or are you mainly local to your region?

[00:15:32] My asset protection coaching, I can do this anywhere in the world and I do have people like all over the place. I'm a licensed attorney in the state of Mississippi.

[00:15:40] But what I'm doing as an asset protection coach, I'm not giving you legal advice. I'm working with your team to set up structures for you.

[00:15:48] Really, and it's a lot of it is mindset. You know, things that you should consider when you hire an attorney, when you get ready to purchase new assets and I show you the frameworks so that going forward, you're empowered to make decisions and hire the right professionals.

[00:16:03] So yeah, that does not require a license.

[00:16:06] So give me an example then. You know, what should people be looking for when they hire an attorney? I mean, you know, you see the, and I've interviewed plenty of attorneys and so, you know, I don't want to predict what your answer is but I know that hiring an attorney is an important thing and you don't want to screw it up.

[00:16:24] It's a big deal. So what should people be looking for when they hire an attorney?

[00:16:30] You know, you want to hire an attorney who specializes in a field that's very similar to your main business. So if I am a business owner and I provide personal services to people, I'm not going to hire a personal injury attorney, you know, as my primary

[00:16:49] attorney and you know some businesses may need more than one attorney. They need to understand the difference between an attorney that primarily does transactional work, which means that they may not go to court as much versus a trial attorney and your needs are going to differ.

[00:17:04] So part of what I do is I just really analyze what type of business you have and the type of consultation you'll need. Everyone should have an attorney that understands a state planning, probate, administration and trust, just period.

[00:17:21] So how do you know if you have a good one?

[00:17:24] I help you with questions. There are certain questions you can ask an attorney and you'll know if they know about certain topics. Like if you're a medical malpractice attorney and I ask you about the standard of care for nursing and you're like, what's standard of care?

[00:17:41] I know to run because, you know, they're just they're called terms of art. Sure. But I mean, you know, if I was to try and find an estate attorney, right? And I, you know, I go out to the internet because nobody uses a phone book anymore.

[00:17:57] And, you know, in my local area there's 15 estate attorneys and I start calling them. I mean, do I just pick the one at the top of the list? How do I know which one is actually worth working with?

[00:18:08] Well, my recommendation is it's kind of like an interview process. You need to first and this is what I work with people on before you ever go to the internet. You need to understand generally what you have that you're going to share with that attorney and what type of help you need.

[00:18:23] You may not know what the solution is, but I'm going to I should be able to articulate that my marital status, my the ownership of assets that I have my general net worth and how I want to dispose of those assets or use those assets in my business.

[00:18:40] Then I'm going to ask the question. What do you specialize in and what would you recommend that I do? So it's almost like dating, you know, you're asking questions to see if it's a good fit.

[00:18:52] And part of what I do with coaching is I teach you based on your situation, the types of questions to ask so you so you will know when you hear the response.

[00:19:02] If I'm asking you about a wheel, a last will and testament, and you don't really understand or you say well no don't get a trust because I don't do trust.

[00:19:12] That doesn't mean that you don't need a trust. It means that they don't know how to do that so they can't properly advise you about it. So you need to go talk to someone who can speak to you about the difference between a last will and testament and a trust and just give you the answers you need before you make a decision.

[00:19:28] So I'm going to ask you more of a legal question here. Believe it or not this one even came up this morning as I was getting out of the shower discussing it with my wife, because I'm trying to educate her as I have been educated now through my podcasts and business adventures.

[00:19:46] There is a difference between the protection that you get from say putting an asset into a trust versus a will. What is that difference?

[00:19:56] So this is a thing. People believe that if you put something in a will, that it can't be contested. Well, a will can be contested and a trust can be contested as well under certain circumstances.

[00:20:11] There's what's called like an interim clause that you can put in that says if you can test that you won't get anything. But like we mentioned earlier, anyone can sue anybody for anything at any time. And so depending on how you set things up.

[00:20:27] Almost anything can be contested but with a trust and this is my opinion because there are different schools of thought with a trust is a little different. When you set that up.

[00:20:39] There are only so many reasons why you can ask a court to invalidate a trust because a trust is not a document that's created under the courts.

[00:20:47] Whereas a will has to go before court it has to be probated, or if you pass away without a will or trust, then the state that you're in will dictate who gets what if you pass away. So there are several differences.

[00:21:01] You know it's no secret I'm a proponent for having a trust centered estate plan versus the will center state plan, because I think there are other protections and there's less contingent liability and lawsuits related to it in my opinion.

[00:21:15] So, likelihood of things going through probate with a trust versus a will. Oh, very unlikely.

[00:21:24] Okay. And I think that's what I was at least getting out with my discussion with my wife this morning is, you know, if there's assets that we have that we don't want to have to go to, you know, God forbid something happens to me right you know I don't want the house to go through probate or you know car this and that,

[00:21:41] you know, and you know she's like but we have a will and I'm like, Ah, you see wills wills a lovely suggestion. But you know the courts are going to do what they're going to do with that.

[00:21:52] So you said something that I kind of want to dig into a little bit more, which is that will goes through the courts will is a court, I guess a court document. But a trust is not.

[00:22:06] So, a will has to be filed with the courts which means that it can be made public record. If your family desires for the court proceeding to be sealed you can file a motion asking them to seal it. But think about this.

[00:22:20] It's not a money it would take you to set up a trust versus paying an attorney or have your heirs paying an attorney after you pass to go to court probate a will go through the formalities.

[00:22:31] And if you're a person of substantial wealth, or you make this be a private person, do you really want all of your assets on the public record in the county that you live in. I don't. I mean, yeah. Anyone say yes to that.

[00:22:46] Well, people don't think about it until I put like I put in there they want everything on social media right. And you know that's different, you know what they days on social media is a little different.

[00:22:56] But um, but yeah, a trust is so much different and the thing that I tell people as well is that the potential when you have a will, you know if you forget someone.

[00:23:08] There's a there's an instrument called a poor over will that you can do with a trust it's like a magic wand. And it says anything that I left out of my trust.

[00:23:18] You know, I wanted to be put into the trust and I'm going to weigh the formalities of a formal probate. So you still have options with a wheel that's different that just a standalone last will and testament that may create a trust when you pass away.

[00:23:31] I mean, I just think that's it's not the best planning and not saying that my the way that I do it is the best way but I've just tried to really decrease the amount of litigation and expense that my clients may have.

[00:23:43] So hypothetically speaking, let's imagine I'm a client of yours and I've got three businesses two kids house white picket fence dog. I'm going to be like a retirement. You know, assets here cash there, etc. You go through your coach me wife get everything all set.

[00:24:08] And I kick the bucket I fly out of an airplane eight year old pack the, you know, pack the parachute. I'm dead. Terrible story by the way, very sad thoughts and prayers.

[00:24:18] And so, under that scenario, my wife morning my loss. It is the greatest loss she's ever experienced. It's the greatest loss the world has ever experienced we are all sad.

[00:24:29] And how bad at this point is the process for her to move on because you've created that mode. What does that look like compared to I've got a will.

[00:24:44] So my trust basically says that I have designated my wife to be the, you know, the beneficiary of 100% you know just keep it clean and simple for the conversation.

[00:24:56] Well either she's 100% or you could have set it up to where you guys are co trustees during your lifetime and when you pass like, yeah, either or so she just keeps moving. She takes as much time as she needs to grieve you and the world of course it's down for

[00:25:12] you know, absolutely they are very upset. They are yeah beyond. Yeah, lots of prayers. Yes. So, yeah, that I mean it's a seamless transition. It's a matter of just you know, updating the trust that one of the trustees, you know, is no longer available, and that either

[00:25:29] the trustee or the co trustee is going to you know, continue to run the trust. Have you have you had situations personally where you have had to represent someone after a death and run clean up and deal with that.

[00:25:47] Not on the trust side, but as it relates to a will side. Oh yeah. How much time do you have that bad. Okay, I mean listen we have all day.

[00:25:58] But it's pretty bad though and you know, I don't think a lot of people think about that I think that they think that, you know, alright I'm going to pass away my spouse is going to have to deal with some paperwork probably, you know stand in front of a judge for 10 minutes and you

[00:26:13] know, I'm going to give you a real life example. I was hired back in 2016 to draft a simple will for a client. She was divorced. She had one deceased child. She wanted all of her assets sold and given to a charity in the name of her son.

[00:26:33] Sounds real simple right. However, she was dating someone who when she passed away to control of all the assets would not move out of the house.

[00:26:44] Use her social security number to you know rack up all sorts of debt. And so now that we have this simple estate open before the court because we do have to notify all of her creditors and let them know she's passed away.

[00:26:56] So now all these people are saying what she owes 10th of thousands of dollars because her boyfriend has run up all this debt. And so it is 2023 at the time of this recording, and we are still trying to get this estate closed. And she passed away when 2016. Wow.

[00:27:15] He has made it, you know just a terrible process to get stuff done, because we're having to prove that it was not her that ran the bills up that it was this individual and is yeah, it's terrible. And it was a very

[00:27:28] So it is safe to say that you should never play house with someone if you're going to die.

[00:27:37] This is what I would tell people. If you're going to cohabitate with someone do everything by contract and that means the lease both of your name should be on the lease. It should be clear that if one party defaults what happens to that party and what

[00:27:53] happens to you. And I tell married couples, if you do not have a pre enough get a post up. And depending on what you do within the marriage do it by contract so that it's clear if there's a dissolution of the marriage.

[00:28:06] Who gets what assets that you have some community property states some are not community property. So if you're very clear on the things that you do is almost like insurance you don't need it until you need it.

[00:28:19] That's a pretty loaded bit of advice. I have to say I mean, in a way it's somewhat controversial suggesting that married couples go get a post and up and basically pre divorce. That's that's a tough one to swallow.

[00:28:32] Well no not really. It's just like insurance. You know why you get insurance in case you run into someone in case someone runs into you but you never get into a car with anticipation that I'm going to have an accident today.

[00:28:44] You know, you just pull it out if you need it. And, you know the time to really do these things is before you get married because you're the most in love. You're the most generous. So that's when the terms for these agreements are always going to be the best.

[00:28:58] Are you saying love Wayne's as marriage goes on. I did not say that. I mean if you're most in love before. Are you saying that you are now less in love after.

[00:29:11] I would say that there may be a plateau at some point. Wow. That's when love is the freshest how about that. Yes, that will go with that. Yes, it is the newest.

[00:29:21] And also with the with any agreements, either before marriage or after marriage make sure you have a cooling off period because that's one thing that I see how contracts are being invalidated.

[00:29:33] You know, you can meet the prenup five minutes before the wedding and say hey, if you don't sign this I'm not going to marry you. So you don't want someone to be under duress when they make a decision to enter into a contract or an agreement.

[00:29:45] So yeah definitely have a cooling off period as well. What's a valid cooling off period.

[00:29:49] I'd like six months. Holy crap. I like six months. It's hard to argue that if you disagreed with something that over the course of half of a calendar year, you didn't make steps to correct it.

[00:30:02] So married couple embarks on a post-nup process. They come to the agreement and then they shelve it for six months before they file.

[00:30:11] Well, okay, when you're talking about a post-nup, it feels a little different. But yeah, I mean I would definitely do a cooling off period because you still have that duress and it really depends.

[00:30:23] You know, you may be more jeopardy then because say you're married and now it may be contentious because oh he doesn't trust me. She doesn't trust me.

[00:30:33] There's this document or maybe there have been other challenges in the marriage. You don't want those things to overshadow what you're trying to do with this new agreement.

[00:30:42] So the six months, you know, you're still planning on being together. You're six months from now. Definitely have a cooling off period.

[00:30:49] What advice would you give a husband or a wife to even approach the subject of hey, I think I'd like to get a post-nup after they've been married say 20 years.

[00:31:03] I would never say hey I think I need to post another. That's the first piece. The second piece of advice. I would be a little bit more gentle.

[00:31:12] You know, hey John, we maybe need to look at our estate plan and it's part of the estate plan. Let's make sure we have everything wrapped up.

[00:31:19] And so that's when you just, you know, you first introduce the idea because you don't want to make it seem like you're trying to get a parachute and bail out or you're trying to... Pre-divorce, yeah.

[00:31:28] But just, you know, framing in a way that I want to make sure that our family is protected. So just find some language that the other person can appreciate.

[00:31:36] Okay. All right. Listen, this has been kind of a fascinating conversation. I've really enjoyed this where we're a little bit low on time so we're going to have to end it here. How can people find you?

[00:31:46] The best way to reach me is my website, www.shareeprints.com and like I said once a month I do a free webinar where I just basically go through the process of how to get a blueprint for your estate plan.

[00:32:02] And you can find it there. And also I'm LinkedIn. At Shareep Speak, it's my LinkedIn handle. All right. Sheree, is there any last words you want to, or last bits of advice, wisdom, anything you want to share with the audience?

[00:32:17] Definitely. Whatever you do in life and in your business, play big faster. Find a way to accelerate your growth by using a team, a coach or a combination of the two.

[00:32:30] Because in life that's what you need to do to get ahead. You can go to Google University or you can go and put together a team that's going to help you build and grow your business to scale. So best of luck, just play big faster.

[00:32:43] Wouldn't it be nice if you could get a certificate from Google University? I googled X amount of pages. I therefore am a doctor. Like what? Well thank you so much for joining and I appreciate it's been a fantastic interview. Thank you.