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Tag: prenuptial agreements

I Can Prepare a Prenuptial Agreement for You, but With Rare, Particular Exception, I Advise Against It.

Most attorney websites that contain “articles” on prenuptial agreements aren’t really articles but thinly veiled sales pitches for prenuptial agreements. This post is not one of those.

I have always believed and still believe that prenuptial agreements breed distrust, disloyalty, and defeatism in marriage for young people who contemplate marriage for the first time. That stated, at this point in my career as a divorce attorney (27 years), I struggle more than ever over the value and appropriateness of prenuptial and postnuptial agreements. Why?

One reason: if you trust the legal system to do right by you and your family, your trust is misplaced. So very many family law attorneys are profiteers. Courts are understaffed, judges and commissioners get jaded, expedience too often substitutes for evidence. I cannot put it more clearly and concisely than this: “Extricate yourself from the system, don’t try to vindicate yourself within it” (Peretz Partensky). A prenuptial or postnuptial agreement may (may) have value if it keeps the control of your divorce in your and your spouse’s hands instead of in the hands of a court.

Another reason: divorce laws and their application are unfair to men. Now, certainly there is plenty of unfairness to go around in the court’s treatment of women too, men generally get treated worse. Permit me to explain my perspective.

Men still generally have greater incomes and greater wealth than women generally. In no-fault divorces, men generally get soaked far more often than women. There are good men out there who married in the utmost good faith whose wives did more than simply use them up and cast them aside by divorcing them; they essentially enslaved their husbands for the rest of their good years (and into their not so good years) by stripping them of at least half of all they had, driving their husbands into debt, and burdening them with oftentimes ludicrous child support and alimony obligations. Because the law permits it.  A YouTuber named Pearl (https://www.youtube.com/@JustPearlyThings) and her guests discuss this at length. As a result of the sheer volume of discussion alone, they do a good job of examining the problem. Although her content is principally light and entertaining, the reality and the cognitive dissonance underlying her content is compelling.

The solution to the misery of divorce does not lie, however, in “making divorce laws fairer.”

Ensuring fairness and equity in divorce is important, no question, but the “divorce problem” is much greater than a legal problem and its solution does not even begin to lie in merely changing laws or enforcing them better. Obviously, divorce needs to exist to remedy serious threats and injustices that cannot be remedied any other way. But divorce is far too easy now, and marriage is criminally undervalued. It’s destroying our culture.

This may seem odd coming from a divorce attorney, but I believe to my core in marriage and family. We all need to devote ourselves to fostering and preserving and improving marriage and family life as the greatest source and protector of personal and societal purpose, peace and prosperity. There are causes bigger than ourselves and that are worthy of our sacrifices to see them succeed. Marriage and family are two of them. We are better individually by being loving and devoted members of a nuclear family. Even Kramden (https://en.wikipedia.org/wiki/The_Honeymooners)- or Bickersons (https://en.wikipedia.org/wiki/The_Bickersons )-style marriage and family life is far better than a world littered with broken marriages and families, self-absorption, and loneliness. Children need and deserve (it is their right!) to be reared in a nuclear family by a loving mother and father.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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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 | divorceutah.com | 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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Are prenuptial agreements used only to avoid divorce settlements?

Are prenuptial agreements used only to avoid divorce settlements?

Prenuptial agreements are used primarily to avoid the expense, the misery, and the waste of time divorce actions can (and usually do) cause by agreeing in advance what the separate property and debts of the parties is now (so that there will be no confusion or argument over ownership and liability after marriage), what property and earnings acquired during the marriage will be considered separate property (instead of automatically being marital property, as it would be in the absence of a prenuptial agreement) in the event of divorce or death.

I generally dislike prenuptial agreements between young, penniless couples who wed for the first (and, it is hoped, the last) time because a prenuptial agreement in such circumstances sends the wrong message, i.e., “I don’t have faith our marriage will last, so I have an exit plan in mind already!” But for people who are already divorced or widows/widowers, a prenuptial agreement is not only a good idea but may be necessary to ensure that your property goes to your chosen heirs and not in full or in part to your new spouse.

Depending on jurisdiction, prenuptial agreements can address and resolve in advance the issues of alimony and child custody and support. Some states allow a couple to address and resolve these issues contractually between themselves, other jurisdictions provide that a court has the ultimate discretion over the resolution of such issues, even if a prenuptial agreement provides differently from what the court rules.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Are-prenuptial-agreements-used-only-to-avoid-divorce-settlements/answer/Eric-Johnson-311

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Would/did you sign a prenup when you got married?

I did not.

I generally do not favor young couples marrying for the first time making and signing prenuptial agreements.

Here is why:

Does signing a prenup change the relationship between a couple?

What is the easiest way to convince your fiancé to agree a prenup?

Would most people who are planning to get married do better if they got a prenup?

Is it necessary to ask your other partner to sign a prenup if you want your property to solely belong to you only?

Does it affect a relationship if just before marriage, your partner and a lawyer bring you papers to sign a prenupcial agreement? What would you do?

Do you believe a prenuptial agreement and real love between two people are mutually exclusive?

Do regular people who earn average incomes sign prenuptial agreements?

Can a prenup dictate that a reflection time is required before divorce?

Why would anyone go into marriage without a prenup?

How do people generally react if asked to sign a prenuptial agreement?

Why are prenuptial agreements not required for all marriages prior to getting a marriage license since divorces are about dividing assets and determining child custody/support? Wouldn’t this help make divorces easier and help avoid doomed marriages?

Does having a prenup demonstrate lack of trust in your future marriage?

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Would-did-you-sign-a-prenup-when-you-got-married/answer/Eric-Johnson-311

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Are a prenuptial agreement and real love mutually exclusive?

Do you believe a prenuptial agreement and real love between two people are mutually exclusive?

Kind of.

And for the obvious reason implicit in the question: what kind of chance does a marriage have, if the couple has already planned an exit strategy? In that respect and to that extent, a prenuptial agreement and real love between two people are undeniably somewhat mutually exclusive. Success is unattainable without the risk of failure.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Do-you-believe-a-prenuptial-agreement-and-real-love-between-two-people-are-mutually-exclusive/answer/Eric-Johnson-311

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Do regular people who earn average incomes sign prenuptial agreements?

Pros and Cons: Prenuptial Agreements

Pros of Prenuptial Agreements

  • A premarital agreement can protect the inheritance rights of children and grandchildren from a previous marriage.
  • If you have your own business or professional practice, a premarital agreement can protect that interest so that the business or practice is not divided and subject to the control or involvement of your former spouse upon divorce.
  • If one spouse has significantly more debt than the other, a premarital agreement can protect the debt-free spouse from having to assume the obligations of the other.
  • If you plan to give up a lucrative career after the marriage, a premarital agreement can ensure that you will be compensated for that sacrifice if the marriage does not last.
  • A premarital agreement can address more than the financial aspects of marriage, and can cover any of the details of decision-making and responsibility sharing to which the parties agree in advance.
  • A premarital agreement can limit the amount of spousal support that one spouse will have to pay the other upon divorce.
  • A premarital agreement can protect the financial interests of older persons, persons who are entering into second or subsequent marriages, and persons with substantial wealth.

Cons of Prenuptial Agreements

  • The agreement may require you to give up your right to inherit from your spouse’s estate when he or she dies. Under the law, you are entitled to a portion of the estate even if your spouse does not include such a provision in his or her will.
  • If you contribute to the continuing success and growth of your spouse’s business or professional practice by entertaining clients or taking care of the home, you may not be entitled to claim a share of the increase in value if you agree otherwise in a premarital agreement. Under the laws of many states, this increase in value would be considered divisible marital property.
  • Starting a relationship with a contract that sets forth the particulars of what will happen upon death or divorce can engender a sense of lack of trust.
  • It can be difficult to project into the future about how potential issues should be handled, and what may seem like an inconsequential compromise in the romantic premarital period may seem more monumental and burdensome later on.
  • A low- or non-wage-earning spouse may not be able to sustain the lifestyle to which he or she has become accustomed during the marriage if the agreement substantially limits the amount of spousal support to which that spouse is entitled.
  • In the “honeymoon” stage of a relationship, one spouse may agree to terms that are not in his or her best interests because he or she is “too in love” to be concerned about the financial aspects and can’t imagine the union coming to an untimely end.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Do-regular-people-who-earn-average-incomes-sign-prenuptial-agreements/answer/Eric-Johnson-311

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Why are prenuptial agreements not required for all marriages?

They could be, but if they were, what a shame. And here’s why:

(I addressed this in a previous answer I gave on Quora, which you can see either by clicking here or reading it below)

Does having a prenup demonstrate lack of trust in your future marriage?

Of course, even if that is not the intent of wanting a prenuptial agreement.

The reason is clear: because 1) marriage is intended to last a lifetime; and 2) a prenuptial agreement (also called a “premarital agreement”) is an agreement made in anticipation of a possible divorce, a prenuptial agreement inexorably has the effect of planting seeds of doubt about the viability of the marriage. That’s no way to start a lifetime endeavor. A prenuptial agreement is unavoidable evidence (not proof, but evidence) that neither party is truly, fully committed to the marriage.

I am a divorce lawyer who is happily married and who, God willing, will stay married. I believe in marriage. I don’t want to see people divorce unless they must. Which is why I discourage most people from getting prenuptial agreements. I make money when people ask me to prepare a prenuptial agreement. But just because I make money when I prepare prenuptial agreements doesn’t make prenuptial agreements good for the clients.

This does not mean that no one should ever contemplate, let alone sign, a prenuptial agreement. Prenuptial agreements may be warranted or even necessary in certain situations (for example: the super rich, people who are remarrying after a divorce or after the death of a spouse, to name a few).

A big problem with prenuptial agreements is that lawyers push them on people who don’t need them, so that the lawyers can make money preparing unneeded prenuptial agreements.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Why-are-prenuptial-agreements-not-required-for-all-marriages-prior-to-getting-a-marriage-license-since-divorces-are-about-dividing-assets-and-determining-child-custody-support-Wouldnt-this-help-make-divorces-easier/answer/Eric-Johnson-311

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Does having a prenup demonstrate lack of trust in your future marriage?

Does having a prenup demonstrate lack of trust in your future marriage?

Of course, even if that is not the intent of wanting a prenuptial agreement.

The reason is clear: because 1) marriage is intended to last a lifetime; and 2) a prenuptial agreement (also called a “premarital agreement”) is an agreement made in anticipation of a possible divorce, a prenuptial agreement inexorably has the effect of planting seeds of doubt about the viability of the marriage. That’s no way to start a lifetime endeavor. A prenuptial agreement is unavoidable evidence (not proof, but evidence) that neither party is truly, fully committed to the marriage.

I am a divorce lawyer who is happily married and who, God willing, will stay married. I believe in marriage. I don’t want to see people divorce unless they must. Which is why I discourage most people from getting prenuptial agreements. I make money when people ask me to prepare a prenuptial agreement. But just because I make money when I prepare prenuptial agreements doesn’t make prenuptial agreements good for the clients.

This does not mean that no one should ever contemplate, let alone sign, a prenuptial agreement. Prenuptial agreements may be warranted or even necessary in certain situations (for example: the super rich, people who are remarrying after a divorce or after the death of a spouse, to name a few).

A big problem with prenuptial agreements is that lawyers push them on people who don’t need them, so that the lawyers can make money preparing unneeded prenuptial agreements.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Does-having-a-prenup-demonstrate-lack-of-trust-in-your-future-marriage/answer/Eric-Johnson-311

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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.

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Prenuptial Agreements: What are they and are they a good idea?

The law that governs prenuptial agreements (known as “premarital agreements” in Utah) is found in the Utah Code in Title 30, Chapter 8. We will answer most questions about premarital agreements by referring to the applicable sections of the Utah Code and some Utah case law on the subject.

Are Prenuptial Agreement a Good Idea?

In answering this question, I could give you the generic opinions that you can find in dozens of other blog postings and articles online or in the library, so I will leave you to the web or the library to find those.  As to my personal opinion:

For most people (especially young people marrying for the first (and hopefully the only) time, I don’t feel that prenuptial agreements are a good idea.  The very fact that the question (of whether prenuptial agreements are a good idea) is asked implies that people have their doubts.

Briefly, prenuptial agreements often make sense for people entering into another marriage after divorce or after the death of a spouse.  Prenuptial agreements in these situations can help prevent friction between the couple over ownership of property you worked hard with your previous spouse to obtain and that you may feel the new spouse ought not claim or share an interest.  By the same token, prenuptial agreements help previously wed couples protect their children’s inheritance from the “evil step parent.” Prenuptial agreements can also make sense for people of extraordinary financial means to protect them from “gold diggers” too.  Otherwise, however, I think prenuptial agreements start a marriage off on the wrong foot.

Let me give you an imperfect analogy to explain why I’m against prenuptial agreements generally, especially for first-time marriages by the relatively young and poor:

You commit to training for and running a marathon, but just in case you decide not to finish training or finish the race itself, you enter into a “pre-marathon agreement,” which provides that in the event you do not finish, you are paid half of your hourly wage you would have otherwise earned if you had chosen to work at your job instead of train and two weeks’ vacation.  How likely are you to finish when you have not just a safety net, but an escape hatch?

How likely are you to stay committed to your training regimen?  How easy will it be for you to “realize” that you really didn’t want to finish a marathon in the first place, or that the rewards of training for and completing a marathon don’t justify the personal sacrifices required of you?

“But wait,” you may say, “what if through no fault of my own I can’t finish the training or the marathon?”  What if a car hits you during a training run?  What if you get dehydrated and can’t finish?  Friend, finishing the race is important, but it isn’t the point.  It never was.  In life there are no guarantees.  Training for the marathon is about conquering yourself (not coddling yourself), and in conquering yourself, you know yourself and your purpose more fully, deeply, and accurately.  Knowing the truth about yourself, your unique talents and limitations, you better equipped and more willing to bring out the best in yourself.  “Bring out the best” denotes that you must give of everything—your time, your money, your property, your attention, your labor, your comfort, your convenience, your body and soul.

Marriage is not simply a question of “what’s in it for me?”  Marriage is bigger than you, it’s bigger than your spouse.  It’s even more important than the both of you combined.

Don’t get a prenup to avoid the demands of divorce.  As my mother told me, it’s the people who do nothing who never fail.  Burn your ships and turn your back on the single life when you marry.  Commit to your spouse and to your marriage and their success.  Success is meaningless without the risk of loss, of pain, of sacrifice, of failure.  Success lies in transcending risk, pain, and sacrifice.

I know that the following thought comes from Jewish philosophy, but as I was writing this I could not find the reference, so I apologize for that, but I still wish to share it with you because it encapsulates both the value of marriage and why a prenuptial agreement in most cases (you’ll note that I did not state “in all cases”—there are times when a prenuptial agreement makes good sense):  Marriage is a lifetime commitment to provide constantly to your spouse emotional intimacy, thereby uncovering your true self and, ultimately, your unique purpose for being created.

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