Unless you’re a lawyer or someone who loves paperwork, your first thought upon getting engaged is probably not getting a prenuptial agreement in place. However, considering a prenup following an engagement can offer each party valuable information and insight into their intended partner, and can provide clarity on what would happen in the event their marriage ends in divorce.
So what is a prenup?
A prenup is a legal document signed by both parties prior to marriage, detailing how their assets will be distributed if they divorce. With the help of a prenuptial attorney, a couple drafts a prenuptial agreement that suits their needs and lifestyles and includes specific information pertinent to their future shared married life.
For example, if one member of a couple is a business owner prior to marriage, their prenup may contain a section on protecting the business in marriage and describing who will maintain the majority shares of that business in the event of separation. Or, if a couple adopts a pet — especially an expensive pet — a prenup could be written to assign custody of the animal to one of the spouses.
A well-drafted prenup is designed to benefit both parties. It allows each spouse to explain their current debts, assets and expectations of the disposition of both in the case of a divorce, while they’re both at their best: preparing to marry. But many couples, fearing the negative fallout from talking about uncomfortable topics like the potential for financial hardship and debt, shy away from a prenup and begin their married life having never been fully transparent with their new partner, and remaining ignorant of the many legal advantages of a prenup agreement. For these couples, it’s worth considering a postnuptial agreement or postnup, drafted after the wedding. It’s far better than no nup!
Why don’t couples discuss prenups?
There are a number of reasons why couples often fail to talk about getting a prenup or marriage assets protection agreement. Some couples are unaware of prenuptial agreement benefits in general. Others don’t understand how prenups can protect assets in marriage. Then there are couples who mistakenly believe you have to have a lot of assets – like a celebrity or high asset individual – to have something worth protecting. Some couples out there are familiar with the advantages of a prenuptial agreement but feel uncomfortable mentioning the word prenup to their betrothed for fear of appearing greedy or materialistic, as if it demonstrates a lack of trust:
“Does my fiancée think I love her for her money? Why doesn’t she trust me?” “Why does he want to separate his assets from me if we’re about to start a life together?” Worse still, asking for a prenup can be perceived as having one foot out the door and planning for the end of the marriage before it has even begun!
Probably the most common reason why couples fail to discuss getting a prenup is that in our culture, the topic of money, who has it and who doesn’t, is simply too awkward to broach. To have a prenup properly drafted, both spouses must disclose the value of their assets, liabilities and income at the time of the execution of the agreement. For some couples, that’s asking for too much information.
But for the couples who proceed to get one, creating a prenup is the first time they’ve ever seriously discussed finances. A shared honesty and transparency about finances is a form of intimacy. It can deepen an already strong relationship.
Talking about prenups.
For openers, consider discussing the legal benefits of a prenup. You can see a few above. It’s actually a great way to start the conversation because it can be instrumental in protecting both members of a partnership.
Next, spend time together looking over a list of topics often covered in a prenup. These include
alimony, separate property vs. community property, business interests, income, real estate, debts accrued, children from a previous partnership, plans to have and raise children together, child support, trusts and inheritances. A couple may know prior to marriage that they want children, and that they hope for one spouse to leave their career to stay home and raise the family. A prenup can protect the stay-at-home parent by promising a share of their partner’s income in the event of separation. A prenup can also help a couple determine the status of their existing assets, i.e. which of their assets are entering the marriage as their own property, such as a business they created or a family inheritance vs. those assets that will be earned or obtained during the marriage. This distinction allows the couple to decide which assets they want to share, and which they want private ownership of.
Next, speak honestly from the heart and identify what’s most important to each of you. Very often, embarking on the drafting of a prenup is an indication that both parties are interested in greater transparency and having a clearer image of who they are marrying. While many couples focus on assets and inheritance, a huge benefit to creating a prenup is gaining a better understanding of each other’s debt. Prenups allow couples to have honest conversations about both the up-side and the down-side of their financial situation, and how that will or will not be altered or shared both during and after the marriage. A couple that can talk about difficult issues before the marriage is more likely to be able to address difficult issues during the marriage.
The advantages of a prenuptial agreement go beyond learning about a partner. It also gives each spouse the opportunity to learn about themselves. In order to draft a prenup, both parties are required to prepare a net worth statement that accounts for their assets as well as their debts, for a detailed picture of their financial standing. And after the fact, once the prenup has been signed, it can be used as a checklist to determine if each partner is following their expected financial trajectory.
Finally, getting a prenup rarely signifies that either party is planning for divorce; far more often, it means the opposite – a willingness to be honest and transparent in order to be drawn even closer together with a trust that’s based on knowledge, not assumption. If the marriage were to end, at least they made an effort up front to lay a healthy foundation of expressed expectations. And in so doing, they’ve created a plan for dividing assets and debts that, more often than not, will save them time and money while married, and also if they divorce.
Have “the talk”.
Even if a couple ultimately doesn’t sign a prenup, discussing the advantages of a prenuptial agreement can provide both parties with meaningful information about their spouse and themselves. Taking it a step further and speaking to a family lawyer to understand their individual legal rights and obligations once they’re married as well as what would happen if they divorced or separated can be equally beneficial.
Who else should you discuss your prenup with?
A skilled, experienced prenup lawyer, Caitlin Ashton, Partner at Laughlin Legal Family Law Group in San Mateo advises, “If people knew how expensive and time-consuming a divorce can be, they might be more cautious and plan ahead before getting married. It’s easy to pick up a marriage license. It is often far more complicated to get divorced, particularly without a premarital agreement.
We are pro-marriage divorce lawyers. We’re firm believers in helping engaged people understand their married legal rights and obligations. If you are planning to get married, I highly recommend you speak with a family law attorney to understand the local state rules and discuss what could happen, worst case, if you were to divorce or separate. At Laughlin Legal, we feel so strongly about the value of a prenup that we offer free consultations.”
Want to have a free consultation with an experienced family law and prenuptial agreement lawyer?
If you or someone you love is interested in getting a prenuptial agreement, learn more about how the family law and prenup attorneys at Laughlin Legal can represent you and your values. Call Laughlin Legal now at 650.343.3486 to schedule your free consultation. If you’d prefer, you can email them to set up your appointment. If they miss your call, they’ll respond promptly and call you back as soon as possible.
Laughlin Legal Family Law Group
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