Now that Valentine’s Day is past and Spring is almost upon us, many couples are starting to plan or are in the midst of preparation for their upcoming nuptials. While the focus is usually on the event itself, couples often start to think about what happens after the wedding and whether a prenuptial agreement, or “prenup”, is something that they should contemplate.
I recently wrote a post for the Avvo Martindale blog about how lawyers can help their clients navigate a prenuptial agreement. https://www.martindale-avvo.com/blog/ask-attorney-jennifer-b-im-new-to-family-law-can-you-explain-prenups/ But clients often want to know themselves whether they should even be considering a prenup.
I often compare a prenup to an insurance policy. It is something that you want to have in case the unexpected happens. Some believe that the prenup takes the romance out of marriage, but that is the furthest from the truth. In fact, the prenup can take some of the risk and uncertainty out of marriage so couples can focus on their relationship. And the discussions and negotiation leading up to the signing of the prenup gives couples insight into how they will handle tough situations, possible disagreements, and real talk about money, all of which will inevitably occur in a marriage. In rare instances, the negotiation of the prenup causes couples to decide not to marry, which is unfortunate for sure, but may also be a blessing in disguise. That is, if couples cannot even agree on the terms of the prenup when they are most in love and excited about their future, how could they ever expect their relationship to survive the ups and downs of marriage – especially the downs.
Engaged couples often want to know if a prenup is for them even if they don’t have a lot of money or a family business to protect. In reality, even if there are minimal assets, a prenup can still prove useful. Couples, can decide how they want to divide the assets they acquire together in the event of divorce. They can also predetermine alimony and spousal maintenance or waive the right to same. A prenup can be broad or it can be very narrow in nature, maybe designed to only determine the disposition of certain assets such as a home that the parties are purchasing and perhaps using separate monies for the down payment. Prenups can also cover what happens to assets in the event of death. It allows parties to contract around state mandated spousal inheritance rights and can give them the freedom to decide in their will how they want their estate distributed and to whom.
Prenups do have limitations. For example, parties cannot predetermine custodial arrangements or child support amounts in a prenup since these issues are always subject to modification. While some couples will include lifestyle clauses in prenups where they dictate day to day issues such as weight limitations for their spouse, frequency of intercourse, etc., it is questionable whether these clauses are actually enforceable in court. As such it is probably wise to omit them.
So, while wedding planning is exciting, the thought of marriage and all that it entails can be overwhelming and anxiety producing. A prenup can offer some additional security. Just like you don’t purchase insurance with the idea of having an accident or having your property stolen, you don’t enter into a prenup with the idea of getting divorced. Both, however, provide peace of mind just in case the unexpected happens.
