Are Prenuptial Agreements More Trouble Than They Are Worth?

Are prenuptial agreements more trouble than they are worth? Do they start the marriage off on an adversarial note?

A prenuptial agreement could be a sensitive topic in many relationships. If finances are something you and your fiancé openly discuss and are generally on the same page with, it may feel quite natural to bring up the topic of a prenuptial agreement. If, on the other hand, finances are a “sticky” subject that almost invariably result in angry words and bitter feelings, you may find it hard to find the right moment to address this issue. So, is a prenuptial agreement worth brining up and if so when?

Is a prenuptial agreement worth bringing up?

For some, the protection of a prenuptial agreement is valuable insurance against loss. Others see the protection that a prenuptial agreement could offer as so minimal that it may be useless, even counterproductive.

The first step in determining whether a prenuptial agreement is worth it in your situation is to meet with an attorney and/or personally research the laws surrounding marriage and divorce in your state. How are assets divided in divorce proceedings? What factors can affect asset division? How does “fault” affect alimony and division of assets in divorce?

A prenuptial agreement is often recommended if any of the following are true before marriage:

• You have been married and/or divorced before
• You own a home, and/or other real property
• You have assets such as savings, profit-sharing, stocks or retirement funds
• You earn a substantial income and your fiancé does not
• There is a significant difference between your financial situation and your fiancé’s
• You or your fiancé will be supporting the other through college or the like
• You have (or are pursuing) an advanced degree or license in a profitable profession (e.g. medicine)
• You could shortly see a big increase in income because your business or other money-making venture is taking off.
• You own all or part of a business
• You may be receiving a considerable or otherwise valuable inheritance
• Someone other than your potential future spouse will inherit all or part of your money when you die
• You have children and/or grandchildren from a previous marriage whom you want to inherit your estate when you die
• You have relatives or other loved ones who need to be taken care of, (e.g. parents, grandparents, siblings, etc.)

If any of the above describes you, and the laws concerning divorce and marriage in your state lead you to believe that a prenuptial agreement is advisable in your situation, then it is most definitely worth raising the subject with your fiancé, even though such a conversation may be an uncomfortable one. If you can’t tackle this subject productively with your fiancé, then how can you expect to tackle all the other difficult subjects that marriage inevitably brings? If you are too afraid raise the subject with your fiancé before marriage, how well do you think you will handle discussions of asset/property division and finances with your fiancé if you were to divorce him/her?  If your relationship is too delicate to handle a discussion of these topics now, it’s likely not going to be strong enough to deal with it later.

When and how should you bring up a prenuptial agreement without starting the relationship out on an adversarial foot?

Broach the subject of finances with your fiancé as early as possible.  It is smart to begin discussing finances as early as possible in a developing, deepening relationship. These discussions can range from lighter topics to serious, in depth discussions, but should cover the subject fully. As you discuss financial topics, steer clear of behaviors and comments that will create an emotional divide. Avoid being judgmental or condescending. If the two of you can discuss finances in a wide range of circumstances it will be much easier to discuss a prenuptial agreement, if you deem a prenuptial agreement could provide protection for either or both of you; financial disagreements are one of the most common reasons for divorce and for contested divorces.

The worst time to bring the subject of a prenuptial agreement up is shortly before the wedding. This is true for more reasons than one. It could spoil the wedding, but it could also later appear that the prenuptial agreement was signed under duress or threat of not going through with the wedding, which could lead a judge to void your prenuptial agreement. Ideally, a prenuptial agreement should be discussed prior to becoming engaged. However, if you are already engaged and/or the wedding is already approaching, and you feel you need a prenuptial agreement, it is not too late to sign one near the date of the wedding, but it would be wise to ensure your fiancé reviewed the prenuptial agreement with independent legal counsel before signing.

Be honest. Be sensitive. You don’t want to burst your fiancé’s bubble or destroy his/her image of you. You also don’t want your fiancé to think you are bringing the topic up because you plan on–or anticipate–divorce. Talk about your financial fears and concerns and aspirations openly. Don’t avoid or mask vulnerability. Encourage your fiancé to think about his/her own assets, future and vulnerability too. Keep the tone affectionate but the context and discussion itself serious. Emphasize that the two of you will decide the contents of the prenuptial agreement together– that you do not intend to dictate all the terms. Explain that the two of you will not sign a prenuptial agreement until you are both satisfied with its terms, and that if (heaven forbid) the two of you were ever to get divorced that the prenuptial agreement could work to avoid conflict and unfairness in the divorce.

Then begin making a list of your individual assets and property.  This is the point where you should seek legal counsel for the remaining steps of the process. There are laws regarding the creation and enforcement of prenuptial agreements. There are too many legal considerations and requirements, too many ways to make mistakes to prepare a prenuptial agreement to take on drafting and signing a prenuptial agreement without professional help.

A prenuptial agreement can provide valuable protection and peace of mind in some situations. A prenuptial agreement does not have to create conflict and can actually help avoid conflict. Prenuptial agreements can foster trust, security and confidence that the two of you can work together to protect each other’s interests. Do not be afraid to broach this topic. And don’t be afraid to seek legal assistance to help you with a prenuptial agreement if you decide one is warranted.