Many people believe that the idea of a prenuptial agreement flies ominously in the face of the romantic notion that love and marriage are forever. In connection with the request that one sign such an agreement, one might hear: “If you really loved me, you wouldn’t ask me to sign such an agreement. Of course, the most common response is....”if you really loved me, you would sign it.” What now? Is the trust between these two individuals irreparably broken? Should the wedding be cancelled? Will the catering hall refund the deposit? All valid questions. The answers lie in truly understanding what a prenuptial agreement is; it’s purpose(s) and benefits, and most importantly, understanding that such an agreement is not a foreboding death knell for the marriage.
Significantly, the topic of a prenuptial agreement should begin as a discussion and not an ambush days before the wedding (this in and of itself could leave the agreement open to challenge at a later date). The conversation should be open and honest, with clearly articulated for reasons in favor of its necessity. Another important consideration for the proponent of the agreement is knowing your “Plan B,” if the prenuptial agreement is out of the question. This, of course, is the harder question and not the topic of this commentary, but just “food for thought.” Thankfully, in this day and age, we are seeing more couples that BOTH see the utility of a prenuptial agreement. Thus, the emotional aspect of it is not the hurdle.
There are numerous reasons why the use prenuptial agreements are on the rise:. Some commons ones are:
1. An increase in the divorce rate is cited as a primary reason,.
2. People are getting married later in life, and have worked at amassing assets they want to protect.
3. Some have gotten married multiple times and do not wish to go through any more acrimonious and costly divorces.
4. The protection of:
a) assets
b) estates for children from a prior marriage or relationship.
c) businesses, especially a long established family business.
d) one spouse from the responsibility for the other’s debt.
A complete and enforceable agreement is best negotiated and drafted by an attorney who specializes in the area of matrimonial and family law in the State where the parties intend to marry and reside. In general, and at the very least, the agreement will include specific recitations regarding: marital and separate property/assets, debt, income, support, the payment of expenses during the marriage, the filing of taxes, the characterization of gifts to each other and/or from third parties,. Full disclosure by each party of his/her financial circumstances is critical, as is each’s opportunity to have an independent attorney review the agreement on his/her behalf.
An important thing to remember is that a prenuptial agreement only comes into play when an “initiating event,” as defined in the agreement itself, takes place. This event can be the commencement of a divorce action or a separation. In that event, the prenuptial agreement, if not challenged during the divorce, is presented as the parties’ Stipulation of Settlement, and the action is resolved without litigation. If there is no “initiating event,” the parties are free to live their life as they please. They can also modify the provisions of the agreement during the marriage (in an acknowledged writing) or even include a “sunset provision” whereby the prenuptial agreement is null and void if the marriage lasts for an agreed upon period of time.
The fact is that none of us truly know what the future will bring. Given this, most, if not all people do everything they can to account for contingencies and protections in the event that their best laid plans go awry. Like any agreement, a prenuptial agreement, at its core, does just that....for both parties. In this regard, can one not say that a prenuptial agreement represents a love strong enough to provide protection for both parties in the event that the marriage is no longer viable? A negotiated, well drafted, and fair prenuptial agreement is nothing to fear. Some even feel that there is a certain freedom in knowing what to expect in the event of a divorce. For most people going through litigated divorces, the unknowns are often the greatest stressors.
In the end,, with a prenuptial agreement, it will be both parties, and not a judge, charting their own agreed upon course. As I am certain most would agree, it is preferable to take our lives into our own hands than put it in those of a stranger.