Would You Say Before Marriage Always Sign a Prenuptial Agreement, or Would You Never Agree to Signing One? Why?

My opinions on prenuptial agreements have changed over the course of my career as a divorce and family lawyer over the past 26 years.

Had you asked me whether I was an advocate for prenuptial agreements at the beginning of my career, I would have told you that, with the exception of divorces who are remarrying, exceptionally wealthy people, widows and widowers, I was against the notion of young couples with their whole lives ahead of them signing prenuptial agreements.

I have married once and only once. I have never divorced. God willing, I will never have need to divorce. My greatest joys in my life have unquestionably come from being a husband and father. I will literally be eternally grateful to my parents who stayed married and did their best to be the loving, sacrificing, dedicated spouses and parents they were. Truer words were never spoken than “No other success can compensate for failure in the home.” (David O. McKay) The best thing that can happen to a child is being reared in a nuclear family. Critics of the nuclear family who cite the horrors of dysfunctional families cannot be taken seriously. For every dysfunctional family, there are thousands of successful families, and it’s the overwhelming desire of people to have two loving parents and siblings and to have a family of one’s own.

My thinking when I was a younger attorney was that having an exit strategy for a marriage that hasn’t even occurred yet (in the form of a prenuptial agreement) is a terrible way to instill any hope and confidence in that marriage. I still feel this way, but my views on the potential benefits of a prenuptial agreement have changed recently.

I am still opposed to prenuptial agreements that make it easier for a couple to fall apart instead of pulling together when the going gets tough. No marriage will be free of challenges and heartbreaks. Any fool who expects perfection of his or her spouse is guaranteed to be disillusioned and disappointed. Marriages succeed and grow strong only when spouses overcome (sometimes the best they can do is adapt to) failure and weakness. Couples who sign a prenuptial agreement believing that it will spare them from risk and pain and loss are naïve.

Yet I wonder whether there may still be some value in prenuptial agreements for young people who are marrying for the first time. And what might that value be? Avoiding, or at least reducing one’s interaction with, the train wreck that is the legal profession and the legal system.

As I indicated above, prenuptial agreements should not make marriages any harder by making divorce too easy.

But the legal system and the legal profession have made getting a divorce, when a divorce needed or perhaps even warranted, far too expensive, time-consuming, and unjust. Too many divorce lawyers (the majority, in my experience) view a successful divorce through the lens of “Just how much can we get away with?” Too many judges and other judicial officers approach divorce cases with bias, cynicism, apathy, and indifference (so it’s no wonder when the decree of divorce fails one or both parties and/or their children).

A prenuptial agreement that provides that the couple will, in the unfortunate event of divorce, abide by an ethic of reciprocity (i.e., do as you would be done by), do their best to avoid unnecessary litigation, and perhaps even agree to submit to arbitration (as opposed to court) any divorce disputes that they cannot resolve through agreement, may be one of the kindest things to spouses could do for one another.

Utah Family Law, LC | | 801-466-9277

Eric Johnson’s answer to Would you say before marriage always sign a prenup, or would you never agree to signing one? Why? – Quora

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