Prenuptial Agreements – Planning to Fail or Failing to Plan?

Posted by: Shel 2 Comments

            The topic of prenuptial agreements can be divisive. Whether called prenuptial agreement, ante-nuptial agreement, or marital Prenuptial agreement - planning to fail or failing to plan?agreement, it is actually a contract entered into by the bride and groom to-be prior to marriage to set forth terms regarding property and/or alimony issues in the event of divorce or death.

            Does it seem counter-intuitive to plan for divorce when preparing to take vows that often include the words “for better or for worse until death do us part?” And how does that conversation even go? “I love you with all my heart, honey – but in case I don’t love you in five years I would like to make sure that the property I’m bringing with me into the marriage remains mine.” Or “Baby I want to spend the rest of my life with you. But in case that life isn’t long enough to trust you with my stuff, I want you to sign something that says you won’t make a claim on my stuff.”

            Discussions about finances and how they will be handled during the marriage should happen before wedding invitations are sent. This is even more necessary when one party has a disproportionate amount of property, anticipates an inheritance, works in a family business, is entering into a second marriage, and/or has children from a prior relationship.

            If either party thinks they want or need a prenup, the matter and the reasons should be discussed long before the wedding date, in a stress-free setting and at a time when both parties can be focused on the topic.

If the reason given for a prenup request is something like “if we get divorced I assume I don’t want you to have my stuff,” more discussion is needed about what marriage means. If you hear “my parents are insisting,” (unless this mandate is tied to a family trust or business) this should tell you something about who you’re marrying and how future decisions will be made. Hearing “my buddy had one and it came in handy,” should also result in you examining the wisdom of marrying this person.

But what if you have children from a prior marriage and want to make sure they inherit the house they grew up in? Or what if your mate has gone through a divorce and wants to ensure that any holdings worked for will not be further diluted? Neither position is inconsistent with planning a life-time together. Often dealing with those niggling “what ifs” frees up the parties to enter into the marriage with abandon, knowing if the unforeseen happens it has already been dealt with.

            You should consult an attorney if you want more information on such agreements or you are being asked to sign one. Each state has specific rules that need to be abided by to ensure that the contract is enforceable in the future. Whether seeking a prenup, responding to a request for one, or both, each party should have their own attorney because their interests are different and one attorney cannot effectively represent both interests.

            Even if you are contemplating a very simple agreement, wording matters and you should leave that to an expert. An attorney can also let you know if there are things missing in the contract which should be included, terms are included which are unfair or wouldn’t be enforced in that state, and when and how the contract can be enforced.

            Whether entering into a prenuptial agreement is planning to fail or failing to plan depends on the attitude of the parties and the reasons for doing so. Make sure you have the conversation about such a contract early enough in the relationship that you can discern which category your situation falls under.

Did you have a prenuptial agreement or wish you did? Tell us about it in the comment section below.  

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  • James

    Maybe it’s my youth, maybe it’s my harrowing debt-to-asset ratio, or maybe it’s just the stigma, but I will not be proposing the idea of a prenuptial contract with my mate.

    However, if the unforeseen should occur and a second wife enters the picture (::negative thoughts), then I think a prenup would be quite useful to protect my fortunes (::positive thoughts::)… I’d be curious to know how many couples actually create this contract with the guidance of separate attorneys. Good points on reasons why they should…

    • Shel Harrington

      James, I have no doubt that you and your first spouse will have a long and lovely marriage wherein you’ll amass many riches (some of them even monetary!). I can’t tell you how many couples actually do use separate attorneys for a prenup, but I can tell you that 100{2303b849a176fc4c55cbcb5b49f44c0b6a86ba83e746fb3d962701d1b8d54085} of them should! I will not do even an agreed upon prenup for both – my service contract is with one party and I always suggest (in writing) that the other party run it by a separate attorney – the other party is free to do so or not.

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