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Prenups Are So Misunderstood, Not Even Attorneys Want Them


Oh, come on. You didn’t really think we were going to do Taboo week without discussing prenups did you? We may sometimes be foolish over here, but you can’t say we’re not brave! Seriously, however, I think the idea of the prenup is an important one to think about and discuss, whether or not you have any intention of getting one. Why? Well, as Dan points out in his essay, it’s super important to talk about how you view money in your relationship, and it’s even more important to make sure you understand the marriage law you’re signing up for (and decide if you agree with it or not). As someone who agreed with the marriage law in my state (and didn’t have significant assets to protect) a prenup was not up for discussion. But not everyone agrees with things like Community Property, so let’s discuss.Prenups Are So Misunderstood, Not Even Attorneys Want Them | A Practical Wedding

Being a very, very practical woman, my wife is a huge fan of A Practical Wedding. Recently, however, I got a very deep dig in the ribs when she began reading about prenuptial agreements on the site. You see, we have one, and we’re ever so glad we wrote it, but everywhere we turn, it seems that people are down on this sort of agreement. “You need to write something about this,” she said. And so, being the obliging husband that I am, I’d like to tell you why we love our prenuptial agreement.

When we got married, no one was in our corner. Of course, they were all happy at the idea of us getting married, but we both wanted a prenuptial agreement and it seemed that nobody, but nobody, thought we should do it. Now, maybe that shouldn’t be so surprising. After all, it seems pretty obvious that prenups carry a lot of negative baggage culturally speaking. But, my wife and I are both attorneys, and many of our friends are as well, and we thought, naïvely as it turns out, that sophisticated legal minds would encourage us to “make it official” with a binding contract. Boy were we wrong! One of my coworkers described it as a mating ritual that only two lawyers could enjoy, and an informal poll showed that none of my coworkers had a prenup, and none of them wanted one. One of my friends was having an argument with his wife over money when I broached the subject of prenups. He privately confided that in hindsight it might have been a good idea to have one. But he quickly changed his tune when he and his wife regained their financial footing.

Still, we thought, all of my coworkers are personal injury attorneys. What do they know about contracts or marriage? Surely, my wife’s friends and coworkers—tax lawyers, bankruptcy lawyers, corporate finance people—would like the sound of a good contract. Wrong again. The primary objections, or assumptions depending on your perspective, that we heard were: Isn’t a prenup unromantic? If you’re doubting things so much, doesn’t that mean you’re not ready to get married? Aren’t prenups for rich people with assets to protect? If you’re getting married, shouldn’t you be all-in financially? (For some reason, these assertions—and make no mistake they are assertions—always take the form of questions. A more paranoid person might find them accusatory, but I suppose you have to expect that sort of thing when you challenge someone’s assumptions.)

So, first things first. Was drafting a prenuptial agreement romantic? Hell no! In fact, at some points it became somewhat tense and awkward. But my question is why on earth would you think it should be romantic? I sincerely hope this doesn’t come as a surprise to people contemplating marriage, but not everything about marriage is romantic. There’s nothing romantic, for example, about taking out the garbage. I guarantee, however, that every happy marriage has a clear understanding of how and when the garbage will be taken out, and critically, who is going to do it. Peeling back the secrets of your financial reality, and more importantly your financial expectations, in order to draft a prenup is probably second only to discovering each other’s bathroom habits in terms of unromantic topics of discussion. But, there comes a point in every successful relationship where a man finds out that women do in fact fart. And, there also comes a point in every successful relationship where you have to come to terms with what to do about your finances. A prenuptial agreement is nothing more than a tool to do just that. Stop trying to make it out to be something more than it really is.

Having overcome that prejudice, the next question invariably touches on some variation of the idea that a prenup is equivalent to hedging your bets, to planning the dissolution of your marriage before it’s even begun. Here’s the thing about that though. Are you married? Well, if so, you’re already subject to a prenuptial agreement. What’s that? You don’t remember signing the contract? That’s because you didn’t. Every state in this country has laws on the books governing property and marriage. It’s just a fact of life. And if you haven’t entered into an actual prenuptial contract, you are subject to those rules whether you like it or not. Now, if you are familiar with those rules and like the way in which they arrange your affairs, then more power to you. But if you’re objecting to a prenuptial agreement without knowing those rules, then you’re just passing up the opportunity to decide for yourself. Opting out of the one-size fits all scenario on the books has nothing to do with doubting the strength of your impending marriage. It’s exactly the same thing as writing a will. You wouldn’t accuse someone who has a will of doubting their own life expectancy would you?

At this point, you’re probably shaking your head and saying, everyone dies, but not everyone gets divorced. And it’s true that therein lies the shortcoming of the will writing analogy. But the shortcoming is not that my wife and I may or may not get divorced. It’s that prenuptial agreements do more in the present tense than wills do. A standard will (one without fancy trusts and convoluted legal schemes) doesn’t really have any impact on anyone’s finances until it gets triggered by someone’s death. Your will does not generally prevent you from doing whatever you want with your own money until you die. It’s all your own financial decisions along the way. The will just allows you to make a couple of extra ones from beyond the grave. In marriage, however, the financial decisions are not yours alone. What you do with your money impacts your spouse and vice versa.

And that sort of leads us into that third question. What exactly is the point of having a prenup if you don’t have any assets to protect? Now, this one always sort of confused me. I’m no lawyer (oh wait, yes I am, but for the purposes of this topic I have no expertise and am no more knowledgeable than any non-lawyer running around with a prenup in his or her pocket), but I always thought that under New York law, where I live, the assets you have prior to the marriage remain your separate assets when you get married. You should check me on that (no really, you should not trust me—no legal advice here). I’m pretty sure that’s what the Domestic Relations Law says. So, that means that while prenups don’t really so much have to be about existing assets, they’re most certainly about the assets that you or your spouse acquires during the course of your marriage. That is, to me and my wife, prenups are about much more about the future than the past.

And that, finally, leads into the last question, because it’s exactly why my wife and I wanted a prenup even though we had no major assets to protect. Our personal understanding of New York law (personal because this is not legal advice) is that absent a prenuptial agreement, income earned during the marriage is joint property. We simply didn’t want that to be the case. So we wrote that little law out of our marriage in our prenup. It’s not that we don’t support each other. It’s not that we’re not all-in. It’s that we decided that we wanted the ability to continually decide what’s right for us, on the assumption that what’s right for us on the day of our wedding might not always be the right thing for us down the line.

Our prenuptial agreement maintains that our individual income remains separate property unless and until we put it into a joint account. The agreement is totally silent as to who contributes what financially to the marriage. It’s not about that. It’s not a selfish document. When I cash a paycheck, I know without doubt that first and foremost, the job of that money is to take care of my family (that family consisting of me, my wife, and two cats). I’m all-in, and I will always be willing to contribute whatever it takes to support my family. But because my wife and I have been open and honest about our finances, I know before I even have the check in hand what exactly I need to put into the joint account to pay our joint bills. And I know that I have complete control over the rest. And that, in turn, takes the zero sum element out of our finances. If I want to buy myself something extravagant, I don’t have to worry that doing so will deprive my wife of something she really wants. And if, on the other hand, I want to buy my wife an extravagant gift, I don’t have to worry about the fact that I’m paying for half of it with her money. This is what works for us, and anyone reading this could come to a different financial conclusion. It doesn’t really matter. The point is that it’s a healthy result reached by going through a process that involved understanding our own financial positions and understanding how they fit into the default rules that society provides for marriage and property.

My parents really did live the whole “till death do you part” scenario. But growing up, I watched for years as they struggled with joint finances. Sure, they had all the usual fights about chores and forgetting anniversaries, but the elephant in the room was always finances. I remember one day the simple revelation when they each realized that they had had enough, and decided to get separate checking accounts. It may not have solved all of their problems, but it certainly helped. And there’s no reason that it should have taken them decades to figure it out. Having a prenuptial agreement is about being proactive with your finances. They are customizable by their very nature. They can be anything you want them to be (within legal bounds obviously), and you don’t have to like ours to have your own. But the point is that after going through the process of entering into one, it’s almost impossible not to be on the same page about your finances. Isn’t that how every marriage should start out?

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  • Kira

    Love this post! Thanks for the levelheaded treatment. I think it’s never a bad idea to discuss your and your partner’s individual conceptions of finances, your joint goals, and how those relate to broader society–whether that be your families of origin or the laws that govern marital assets. I suspect that for most people, those don’t all coincide perfectly, and the issues are so significant that I think it’s super important to know what you’re signing up for and make sure you’ve thought them through.

    Finances have a big emotional component, which I think means that a prenup agreement or a solid understanding of state marriage laws can feel symbolically significant even when divorce is the last thing on anyone’s mind. My fiance and I have a consultation with a lawyer firmly on our list of engagement/wedding planning tasks, partly because he does have significant assets and there is family pressure for a pre-nup (which feels less rosy, of course) but mostly because in discussing our financial futures we realized how little we do know about the relevant laws, and it seemed silly to sign that contract without knowing what we were getting into and whether it felt right to us.

  • Alicia

    Awesome post! I agree that not everything about marriage is romantic and I get frustrated when people seem to think that the entire engagement and marriage should be full of flower petals and candles. Planning your finances and having an in-depth discussion about how each partner handles money is critical.

  • Sarah

    Thank you for this, it’s made me realise that whilst I’m getting married in 2 weeks time I didn’t actually know what legal rights it gave me (eek!). Googling gave me this very useful page from the Citizen’s Advice Bureau outlining the difference between living together and being married in England (though there’s a thing at the top that you can change to get the same info for Scotland etc):

    http://www.adviceguide.org.uk/england/relationships_e/relationships_living_together_marriage_and_civil_partnership_e/living_together_and_marriage_legal_differences.htm

  • http://twitter.com/itsradishtime Taylor

    Interesting. I was always anti-prenup because I thought they only had implications for divorce, and we always planned to have two separate checking accounts along with a joint account (my parents are a lawyer and a financial advisor. ha!) so we could treat money earned within the marriage exactly as you described.

    We will contribute to the joint account at an equal percentage of our incomes, knowing that our family expenses are covered first. Then, we’ll each have a separate account from which we can buy gifts for each other, or he can buy fancy guitar pedals or I can buy fancy video editing software without it having to be A Discussion.

    Though I never thought a pre-nup was required to do just that. My parents do it that way with no pre-nup (and it sounds like yours do too). So I’ll have to do my research (because I totally understand, no legal advice here) But I guess I’m not totally convinced.

    The point of the separate accounts is not to protect our money, but to protect our marriage (not fighting about big purchases and such). And if the marriage dissolves, there’s not really a need to protect that financial arrangement anymore. Neither care much for money, really. We don’t much care what happens to it. If we divorced it would make perfect sense to us to split down the middle even if it wasn’t that way during our marriage.

    • meg

      Given that this arrangement is just something for your marriage, not something you’re worried about holding onto in the event of a divorce, you are probably just fine. But ALWAYS do your research. The marriage contract is the most powerful contract you’ll ever sign, and most people don’t even bother to find out what’s in it.

      • Remy

        I was disappointed to find that our state government doesn’t seem to want to help out with that. (At least not at the level it wants to talk about healthy pregnancy and birth, even to people who aren’t necessarily interested on a personal level.) When my sweetie and I signed domestic partnership papers this summer, we received the purple booklet that is distributed by the Secretary of State to all married and DPed couples. It was about 40 pages long, as I recall — and there wasn’t one bit of it about the financial responsibilities and rights married couples have. It talked about genetic defects and STDs, but not about medical power of attorney or DNR orders, or any other “next-of-kin” duties. I should think THAT would be “Health Information You Need to Know”!

        http://www.sos.ca.gov/dpregistry/forms/sf-dp_yourfuturetogetherbrochure.pdf

        • ElisabethJoanne

          We got ours last week, and we’re laughing about it last night. I think it’s actually 60 short pages.

          As a matter of legal history, the reason it is what it is, is because the pamphlet is a result of no longer requiring blood tests for marriage licenses. It’s a product of compromise legislation. You no longer have to be tested for (just a few) STIs, but you do have to be given a bunch of health info. It is not designed to be general information about marriage, just health information.

          • Remy

            Right, I can see it’s produced by Genetic Disease Screening Program, so it makes sense that it’s narrowly focused. But why NOT distribute a short sheet of “These are the new rights and responsibilities you have”? Rather than the elusive “by request” pamphlet about LGBTQ-specific domestic violence that we paid $23 extra for. *grumble*

  • http://minnesota-chic.com PA

    Every state in this country has laws on the books governing property and marriage. It’s just a fact of life. And if you haven’t entered into an actual prenuptial contract, you are subject to those rules whether you like it or not.

    I think this is one of the most compelling arguments – you’re not creating this extra, binding contract on yourself and your spouse, but instead you’re making sure that the contract that IS binding on the two of you is one that works for the two of you.

    A lot of food for thought – thank you for sharing!

    • rys

      This is key. (Quick legal curiosity question: does the state laws of the state in which the marriage is performed or in which the couple is living/filing taxes when married or in which the couple later resides govern these matters?)

      Also, I think I may have commented on this before, but pre-nups can cover more than financial assets. In Orthodox Jewish circles, it’s becoming more common (though by no means typical, yet) for couples to sign pre-nups that ensure that in the case of divorce, the man will give his wife a get (Jewish divorce document). Jewish law only allows for men to grant gets, and it has sadly become a tool of oppression in communities in which it matters if the parties have one. So a pre-nup that makes granting a get a condition of civil divorce helps avoid that problem. The point is: a pre-nup is a legal contract; it can include whatever contractual obligations the couple thinks are wise to set out as conditions of the marriage (and it’s possible dissolution) from the get-go (as unromantic as that may sound).

      • Chalk

        That’s really interesting.

      • Copper

        now you’ve got me interested: what is a get, and well, what does it get you? Not Jewish, just a curious kitten.

        • meg

          A Get (more here) is the legal Jewish divorce document. Judaism was one of the most progressive religions early on, because the Ketubah gives a woman very specific rights in the event of divorce. You want unromantic? The time honored traditional Ketubah text says how many sheep and goats a woman will receive in a divorce, which was shockingly progressive. But, to be allowed a divorce by Jewish law, you need to be granted a Get. In Orthodox Judaism, only the man can grant a Get. However, if he won’t grant it, a wife can sue for a Get in Rabbinical court (we know people that have done this and won, in fact. There are a bunch of reasons you can use, including lack of support and lack of SEX, interestingly enough).

          I believe, as liberal reform jews, we were to divorce (God forbid), we’d still have a Get to dissolve our legal Jewish marriage, it would just be egalitarian (aka, we’d be granting it to each other).

          Jewish marriage traditions are fascinating, historical, and very legal.

          • Ambi

            Hey Meg, I want to second the fact that Jewish marriage traditions are fascinating. I guess this is an area where the lawyer in me and the historian in me and the feminist APWer in me and the spiritual person in me that is still seeking religious understanding all converge, because I could read a treatise on religious marriage laws and traditions (and, for some reason, I happen to me especially interested in Jewish traditions, maybe because, as you said, they were some of the most progressive early on). I find it incredibly interesting to look at how our current laws and traditions have evolved, and I think it is so amazing to be able to understand our own marriages in the bigger context. I know that, like politics and money and body image, religion is one of those topics that can be tricky to discuss in depth, but I would really love to see more posts on APW about religious laws and traditions associated with marriage.

          • meg

            Hey Ambi,
            That probably won’t happen. Issues of cultural appropriation are among the most difficult to discuss online, and what I’ve learned in the past is: we don’t seem to be able to discuss specific cultural traditions without people saying “I want to take that,” and not understanding why it upsets members of a minority group.

            So! Fascinating stuff, but for the sake of my moderating sanity, we *probably* won’t have tons of posts on them. Though never say never, etc.

          • Ambi

            Meg – totally understood! I get it completely (and agree). I’ll just have to be on the lookout for interesting books on the subject (so if you ever want to write one . . . . ).

          • rys

            Yep, Reform Judaism allows for egalitarian get-giving.

            The problem of agunot, “chained women” who are hamstrung by not having received a get and not having a rabbinical court willing to force the ex-husband to give one, is one I’ve generally encountered with Orthodox women. And that’s in part because without a get, they can’t (Jewishly) remarry so with-holding it has more than symbolic power. That’s probably enough on Jewish marriage and divorce law for the day, but certainly a fascinating topic.

      • meg

        Not legal advice, but I believe it’s the law of the state you divorce in.

        And so interesting about the Get, particularly since that sounds like it’s manipulating Jewish law a little bit, since a Get, “may not be pre-dated.” Tricky!

        • meg

          Correction, actually (still not legal advice), ‘the law is that a spouse can file for divorce in the state in which he or she is domiciled, even if the other spouse is in another state, and even if the marriage wasn’t performed there. Personal property is governed by the laws of the state where the divorce was filed, real property (land, etc) is governed by the law of the state where it is located.’

          I’m not someone who has (or particularly wants) a pre-nup, but I’d say THAT is an argument for getting one. AKA, your partner can move to a state with laws that you don’t like, file for divorce there, and you have one ugly legal battle on your hands.

        • Amy March

          The NY courts often require gets to grant a civil divorce, their reasoning being that you shouldn’t be able to manipulate state law to divide assets, while maintaining that you are married. And I agree- fascinating. You can also get an annulment for fraudulently concealing your religious beliefs, which a woman I know used when her Othodox husband told her pre-marriage tv and movies were fine, and post-marriage revealed he thought they were evil.

        • rys

          True, you can’t predate a get, but it’s actually possible to create a “provisional get,” that can be executed by designated witnesses in case it’s needed at a later point. Historically, it was developed in response to problematci cases of things like seafaring husbands — basically, Jewish law presumes a husband dead after 7 years missing (I think that’s the number, it’s been a while) but that means a woman could be left hanging for a while which has a whole host of problems associated with it, especially in the days of yore.

          I know people who have used this legal mechanism at the time of marriage — often in cases where they’ve used Rachel Adler’s brit ahuvim (Lover’s Covenant) rather than a traditional Ketubah. They designate people who will grant the get, as necessary in case of disappearance, recalcitrance, medical incapacity, etc. As Blu Greenberg has said, “where there’s a rabbinic will, there’s a halachic way,” which is to say Jewish law has all sorts of crazy work-arounds when rabbis want to create them. Anyways…

      • ElisabethJoanne

        Rys, if I remember my Community Property Law from preparing to take the California Bar, at least in California, the governing law for regular income is where the couple lived while earning that income. The governing law for pre-marriage assets and debts is California’s Community Property Law.

        Example: We will marry in California. We marry, and live in California. For the first year, I’m the sole breadwinner and we acquire $10,000 in savings. Then we move to a separate property state, and he’s the sole breadwinner, and we acquire another $10,000 in savings. I move back to California to divorce him. I get $5,000 (half the community property savings from California). He gets $15,000 (his half of the California savings, and all the separate property savings).

        I think. Usual disclaimers about not being legal advice. It’s not framed as advice, anyway.

        • rys

          Got it. It’s interesting to think how state law operates given the transitory lives many people live today….which may also be a reason for a pre-nup since you don’t necessarily know where you’ll live later in life and the laws there may be different from where you when you marry.

  • SarahToo

    I’m curious about what the options are for people who are already married. Is it possible to get a pre-nup if it’s already post wedding? Or is it too late at that point?

    • Lauren

      I can only speak for NYS, but here, you can still get an agreement after marriage. It’s called a “post-nuptial agreement.”

      • z

        Not too late, post-nups are common when an unexpected financial issue comes up. Also, pre-nups can typically be amended by mutual consent, so you aren’t stuck with it forever. You can also do agreements for just one asset, like if you become a partner in a family-owned business or inherit something that’s supposed to stay in the family. There’s a lot of flexibility.

    • http://theroadto92912.blogspot.com Molly

      You can get a post-nup, and it’s basically the exact same thing.

  • Lauren

    I love discussions about prenups – I’m a family law attorney and think they are the greatest thing since sliced bread. But, in my field I’m actually in the minority with my love of prenuptial agreements – most other family law attorneys feel like it puts a “chill” on the happy union. While I agree that talking about divorce/finances/etc isn’t a happy or fun topic – it is one that should be done (IMHO).

    I think my fiance and I are going to get a prenup if for no other reason than to determine what will happen to our house which we bought several years before the marriage and is only in my name (because of our different financial positions). No legal advice here, however, for all intents and purposes the title of the house will make it remain my property during the marriage (unless we refinance which is expensive!). I don’t feel that’s fair because my fiance has contributed to the mortgage and care for the house so I want that premarital period of appreciation included as marital property. Without the prenup, that would be an argument my fiance (husband at that time) would have to make during the divorce which isn’t fair. While it’s true that I don’t need a prenup for this – because I can just take this position in a divorce – I know myself too well. When I get angry/frustrated, I get this urge to fight and I’m not sure I would stick to this commitment (even though I am 110% content with it). So, the prenup is also a way (for me/us) to stick with what we were content with in happy times.

    As an aside, I can tell you – when I’ve divorced people with a prenup they almost always tend to be able to stay on relatively good terms. My non-prenup cases…well…those are almost always a battle (unless they choose mediation). I’m all for prenups and think it is fantastic that APW has the courage to encourage conversations on this topic.

    • Another Meg

      As someone who went through a divorce, a pre-nup certainly would have saved some trouble. And a lot of fighting, time and money. No one goes into a relationship expecting it to end- but your decisions made in good times are probably going to be much more fair and forward-thinking than decisions made, say, while in the throes of intense heartache and all you want to do is take your now-ex’s favorite golf clubs and stick them in your basement to rot….

      I’m still not 100% certain we’re going to do one, but it’s important to at least discuss. We might even just have one that says we get the things we came with. Even if you live in a state that has laws you agree with, if you move to another state, you are now subject to those laws instead.

      • tirzahrene

        As another divorced person, well, I didn’t get married with a formal prenup, but we did sit down and make notes about what we thought would be a fair division of property if we got divorced. And we did get divorced, years later, and even though the notes we made weren’t any sort of legally binding, we abided by those intentions pretty well. And I think it helped a lot to reduce stress, because it eliminated hours of conversations we’d have had to have otherwise talking about what we thought would be fair. We both came out behind in the end, but I think that’s inevitable, and I do feel happy that we managed to abide by what we felt was fair from the beginning.

        Next time around, I’d like an even more formalized prenup.

    • dee

      I don’t know where you live, but as a family law attorney I’m sure you are well aware of the laws in your area.

      However, for others reading this- don’t take as legal advice without checking the laws in your country or state. I know for example that where I am from, the “primary family dwelling” is treated as part of marital property regardless of whose name is on it originally unless there is a pre-nup. So do your research!

    • meg

      Elizabeth Gilbert talks about pre-nups as loving and protecting each other in advance, since during a divorce your best self is often not available.

    • La

      I will caveat this that I don’t even live in your country so have no knowledge of insolvency law there, but I was wondering if you have also thought about your position as the sole property owner on insolvency (the other romantic concept!). Are you the only one legally responsible for the lending?

      • ElisabethJoanne

        In the U.S., bankruptcy law is a whole other layer beyond family law, divorce law, pre-nups, and post-nuptial agreements. That list is governed by each of the 50 states. Bankruptcy law is governed by the federal law. You can’t write a contract or opt-out of bankruptcy law, except with your creditors (the holder of the mortgage, the credit card companies, etc.).

        I don’t know the details of how the bankruptcy courts interact with pre-nups. You can get a pre-nup that the bankruptcy court will honor ,that keeps a pre-marital debt just one spouse’s, and/or keeps post-marriage income just one spouse’s, but these are specialized issues to discuss with the attorneys drafting the pre-nup, and it’s kind of like child support, in that the court has to look out for, not the spouses, but people outside the marriage (creditors and children, respectively), and they’ll ignore a pre-nup to protect the interests of those other people.

    • TheSasha

      I was planning to get a prenup, but upon looking into it, it seemed that prenups are rarely held up in court if one person contests or sometimes just if the court decides it’s unfair, which made it seem not woth thousands of dollars in legal fees. In your experience why are they so great/how do they get held up?

      • ElisabethJoanne

        The county where I live has a Lawyer Referral system, where you can pay like $50 and get a serious half-hour consultation with a lawyer about your issue. [Lawyer rates in this area start at about $150/hour, so this is a good deal.] That’s what I’d suggest for you.

        Even serious websites may skew your perception of how often they get held up, and reasons they get invalidated, because they will mostly discuss the interesting cases. My educated guess is that most times, when there’s a pre-nup, neither spouse challenges it, and it moves them quickly through the divorce proceedings, which is boring – no good for the tabloid press, and no good even for law review articles. But when it comes to the courts and the actual people involved in a case, boring is good.

    • MDBethann

      We didn’t do a pre-nup (though a post-nup might not be a bad idea), but when we bought our house 2 years before we were married, we drew up a legal agreement that covered disposition of the house if either (a) something happened to one of us (since our families were our next-of-kin legally and therefore inherited our property) or (b) we split up. Neither event happened, but it was just nice to know that until the marriage contract occurred, neither one of us was at risk of losing our home if we lost the other person.

      As for finances, we’ve maintained separate accounts and then opened a joint account, from which we pay all of the household bills. We’ve only been married a few months, so I think over time we’ll probably make more stuff joint. There’s some history on one side with an ex who was not financially responsible, so we just take things slowly even though we’re both financially responsible and only have the so-called “good debt” (student loan, mortgage) and pay our credit cards off every month. We figure we’re married for the rest of our lives, so we don’t have to do everything at once :-)

  • z

    I think pre-nups are very romantic. It’s a way of binding yourself in advance, saying I Will Be Fair To You, Dad-Gummit, Even If I End Up So Mad I Can’t See Straight. The main thing I learned in the first few weeks of law school is that people have widely, wildly different ideas about what’s fair and it can be very hard to predict. But people’s ideas about fairness tend to be colored by their own best interests and the circumstances– I think that’s why two good-hearted people can still get into very contentious divorces. We’d all love to believe we’ll be fair to one another no matter what, and that we have the ability to choose a spouse who won’t screw us over, but that just isn’t realistic. So I’ve always looked at a pre-nup as a way of saying to each other “I know I am not a perfect person, and I love you so much that I want to give you this security in advance and make sure you’ll be treated fairly, even if our relationship ends badly.” It puts stars in my eyes, it really does.

    Personally, I wouldn’t feel comfortable leaving the workforce for any length of time without good state law or a pre-nup that protected me financially. A pre-nup can patch the holes in our legal safety net for caregivers and make us feel more comfortable putting the family unit first. It’s feminist and romantic at the same time!

    Outside the marriage, it’s also a way to keep your promises to others. If you have agreed that Grandma’s cottage will always stay in the family, or promised to pay your niece’s tuition to the juvenile reformatory, a pre-nup can be used to allow those people to rely on that promise no matter what happens in your marriage. They didn’t choose your spouse and shouldn’t have to rely on promises made by someone they might not even know. So it can be very useful and appropriate in the case of family businesses and emotionally significant assets that involve others.

    It’s also great for people who are planning to move to different states or countries, because the law can be quite different there. It’s just a way of having your own arrangement that you’ve chosen, regardless of where you live. And working through the process of creating a pre-nup, even if you don’t actually end up using one, can be a really helpful part of getting on the same page financially and understanding expectations as a couple.

    • Sarah

      Love this way of looking at it!

    • Erica

      I wholeheartedly agree and also think that the process itself can be quite romantic. You get to sit down with your partner and talk through your vision of the future. What’s important to the two of you? Will you buy a house? Have kids? Take some time away from your career(s)? Change career(s)? Etc. The process of writing a prenup asks you to look at all of those plans/dreams/hopes and think about them from an actual, paying-for-it perspective. So I think it can really be a way to start to make those plans real. It’s only the very end of the process that asks you to think about what happens if, after you’ve built up this life together, you have to split it back up. (And, again, I really agree that promising in advance to split it up fairly is a very good and decent thing to do.)

    • Ambi

      Z, I have always theoretically liked the idea of a prenup, but your post gives some really concrete examples of how you can use one, and I think that this is exactly what I need more of.

      My guy and I are both lawyers, so I guess we could dig in and do the legal research ourselves, but I would be really interested in reading anything that gives you ideas for what a prenup can be used for, kind of like Z’s comment here. So, for example, I probably wouldn’t have thought about the issue of planning for the possibility that one of us may leave the workforce to be a caregiver, or the potential for keeping family property in the family, or things like that. Like many people, I think about pre-nups more in terms of planning how your assets will be divided upon divorce (and now, thanks to this great post) as a design for how to manage money while married. But I know in the past that we’ve talked about using prenups to agree on non-monetary issues as well, and now Z’s comment makes me want to find out more about all the situations and scenarios where a pre-nup may be helpful.

      Anybody have books, websites, or articles to recommend?

    • meg

      “I wouldn’t feel comfortable leaving the workforce for any length of time without good state law or a pre-nup that protected me financially.” This is a FASCINATING point. Women are so often screwed in divorces if they stayed home for any length of time, and have a resume that will allow them to earn way less than their divorcing partner. Also, note, this could be handled with a post-nuptial agreement as well.

      • Class of 1980

        I also thought that was an important point.

        I get tired of the notion that it’s always a risk to stay home and there’s NOTHING you can do about it. Why aren’t we trying to do something about it?

        Of course, in the days of alimony, it wasn’t as risky. But this is a good point that a pre-nup can solve this problem (as long as the money is there in the first place).

        • meg

          “Why aren’t we trying to do something about it?” is always the right question to ask, and way to rarely asked, particularly when discussing issues surrounding women, if you ask me.

          • Class of 1980

            The first step is for women to start valuing themselves and their contributions. We need to right this wrong.

            If we do that, the men tend to follow.

          • Drew

            Thank you Dan for taking the time to write this informative article. It sounds though from your tone that you do not plan on becoming parents. If your wife became a stay at home Mom, do you simply increase your contribution to the joint account? I never stopped to think about a legal way of protecting ourselves from the other’s potentially destructive spending, but when considering how this may affect raising children I wonder how practical this is? Appreciate your comments, thank you.

      • Class of 1980

        Also, I knew a lady who was married to a top executive at Ford Motor Co. back in the 80’s and 90’s. She stopped working after she married him. They moved around to various countries for Ford, and she could easily pick up and go.

        However, she made him put a substantial amount of his earnings into an account with only her name on it every year. He did it faithfully.

        I always felt that was a sign that she had self-respect and enough brain cells to to protect herself in the event of a divorce.

        • SusieQ

          My parents have a similar (in idea, if not in actuality) arrangement. My mother quit work to raise the kids while my father started a successful company, but everything that he owns is in her name. She owns his company, their house, their cars, etc. The only things in his name are some classic vehicles he had before their marriage.

      • Sam

        Not sure how this little nugget fits into US versions of a pre-nup, but, as a South African woman getting married, an ante-nup is the only way to AVOID being financially beholden to your husband after marriage. (Something to do with old Dutch laws, still guiding marriage rights today). But, essentially, unless you as a couple formalise your assets and how they will be shared/accrued during your marriage, you can’t, as a Mrs even open a bank account without your husband’s joint consent, and all your stuff becomes his stuff, unless you specify that you don’t want it to. (To be clear, as i understood it, this only applies to the female part of the equation). Nuts, no?

        • Class of 1980

          Nuttier than a walnut tree. ;)

        • Rose in SA

          Hi Sam

          Another SA woman here – community of property actually applies to both spouses, not just the woman. Your husband also wouldn’t be able to apply for credit without your consent.

      • Anon for now

        It’s interesting though. When my aunt and uncle got divorced after 30 years of marriage, most of which my aunt spent at home raising my 4 cousins (and then going back to school to finish her teaching degree), the judge in the state they resided in at the time DID take that into account in their divorce settlement. They had moved from PA to Ohio after my cousins were out of the house because of my uncle’s job and Ohio’s laws recognized my aunt’s homemaker status as contributing to the family. I believe she got a very nice alimony settlement (for 10 years or so I believe), half of the house, and half of her ex’s pension. The whole situation was lousy because of the circumstances and most of my aunt’s support system was back “home” in PA, but financially she did pretty well. And despite a few bumps in the road along the way, I think she’s healthier, happier, and better off without him 12-13 years later than she was then.

        But it really, really depends on the state. I don’t know what kind of deal she would have gotten if she had lived in PA or another state at the time.

    • Class of 1980

      Z, your comment is golden.

      I remember when pre-nups first started to be a “thing” in the eighties. At first, I was turned off by the idea, especially because a famous attorney back then said he’d never seen a marriage with a pre-nup that didn’t end in divorce.

      That was ominous. ;)

      But in the last few years, I’ve thought about it the way Z thinks about it. I think if someone has an asset they want protected, and they are willing to be fair with you in a divorce, then a pre-nup shows good faith on both sides.

      I could see myself feeling even more secure knowing what to expect from them and them knowing what to expect from me. I’m not afraid of a pre-nup.

    • Sarah

      Z, you’ve convinced me. I don’t know that I’ll ever be a write-my-own-vows person. But today’s conversation makes me want to be a write-my-own-laws/rules person.

    • tirzahrene

      Yes. And not just that you’re too mad to see straight, but that by the time things get bad enough to divorce over, they’re such a mess that you can’t tell if you’re seeing straight or not. It helped a lot to have the pre-notes we’d made to refer back to and reassure myself that I was being fair to both of us.

  • SAM

    Just to add, if you’re already married, you can still do a post-nup. Keep that in mind for if you ever inherit family property, one of you starts a business, etc.

  • Abbie

    My dad, a trust and estate planning lawyer, did me one better before he passed away four years ago. My assets and all I stand to inherit from my family of origin are part of a trust, eliminating the need for a pre-nup. Not sure if this is an option for everyone, but there are other ways of determining the legal status of pre-marriage property other than the sometimes sticky pre-nup situation.

    • http://theroadto92912.blogspot.com Molly

      This is not legal advice, but at least in my state (IL), anything you inherit from your family of origin is not marital property as long as you don’t intermingle it with marital assets. Not sure what the laws are in other states, though.

    • ElisabethJoanne

      There are certainly ways of taking care of certain assets, liabilities, and income without a pre-nup, but they all have trade-offs. In Abbie’s example, her parents did something she had no legal say in (except you can refuse to accept an inheritance, though even that principle has exceptions), to accomplish what she may or may not have worked out with her spouse. Certainly we can all imagine situations where it’s easier to say to our parents, “You should talk to your estate planning attorney about arranging for X,Y,Z to stay in the family, despite us kids being married and the background possibility of divorce,” than to say to a future or present spouse, “Let’s work out an agreement to make sure the cabin I may inherit stays in my family in case we divorce.”

      A happy version of the situation where it’s easier to work things out with the parents than the spouse is where the marrying couple isn’t really sure of what they stand to inherit. My parents are still working and could easily live another 30 years. They don’t even have a clear idea what they plan to leave me, if anything. While a pre-nup could plan for that inheritance, it’s hard to plan when you don’t know what the inheritance is (unless you have strong abstract opinions that all inheritances should work in a certain way).

      An unhappy situation is where it’s easier to talk to parents about uncomfortable financial stuff than one’s soon-to-be-spouse. To my mind, that’s a red flag.

  • http://nerdycare.blogspot.com/ SelkieKel

    Brilliant post. I love that this subject is being consistently brought to the forefront, because the negative associations that get tacked on to a pre-nup are frighteningly effective at driving people away from some much-needed conversations. The comparison to will-writing is an argument I haven’t heard before (more frequently it’s an ‘insurance’ metaphor).

    I’ve mentioned it previously but, there are also other, non-legally binding options available (though this depends heavily on the community property laws in your state/country). In the early stages of our engagement, my then-fiance and I sat down and hashed out our feelings on pre-nups (we were both of the insurance policy/fire extinguisher mindset) but quickly realized that neither of us was bringing terribly much to our impending union in the way of material assets and we were planning on doing the separate/joint account hybrid financial setup that Dan describes. We reviewed the material laws together, dicussed the implications, and decided that a pre-nup didn’t cover everything that we wanted to address (can you tell we were just a LITTLE into planning?)

    Instead, we drafted a “In Case of Martial Emergency Treaty” which was essentially a piece of notebook paper on which we laid out the terms and procedures that we agreed would be the best course of action in case the worst went down (how and when to seek therapy, how we’d like to divide assets, how we would proceed if we did decide to divorce, how we would address a divorce with our family and friends). It certainly wasn’t a fancy document but the discussion that unfolded during its composition proved invaluable. We “sealed” the Treaty with a vow to each other that we would abide by these terms as we would to our marital vows.

    I won’t get into the messy details, but, despite our best efforts, the worst DID happen and we did divorce. However, we remained responsible adults; we stuck to our guns and to the provisions of our Treaty (and were grateful that we did so before emotions started running high). Our separation was by no means a pleasant experience, but we were able to navigate those roiling waters with mutual respect and a single mediator.

    Long story short: you don’t necessarily need a document. You DO need to have an uninhibited discussion of these subjects with your partner and come to an agreement that works for you both.

    • http://twitter.com/itsradishtime Taylor

      an “In Case of Marital Emergency” Treaty.
      I want one of these.

      • Copper

        me too. I’ve offered to the bf that when we make things official, I would be willing to do a prenup for the specific purpose of protecting his business. I’m not particularly interested in hashing out every what-if and worst case scenario, but I wanted to offer him the security of knowing that I wouldn’t want to go after his store, no matter how bad things got. The ‘In Case of Marital Emergency’ Treaty sounds like a happy medium where we get to set in stone the things we care about most without delving into things that’ll make us mad at each other for no good reason.

  • http://weehermione.blogspot.com Hayley

    “not everything about marriage is romantic.”

    Short comment: Amen, sir.

    • K – Down Under

      indeed. I especially liked this: “There comes a point in every successful relationship where a man finds out that women do in fact fart.” An ongoing source of amusement in our marriage… :)

  • Ros

    I think the process you went through in deciding to get a prenup is key.

    We went through the same process (with more or less the same questions, no less) but decided that a prenup was unnecessary, because the divorce laws in our province included pretty much what we would have wanted to put in a prenup.

    I think the process and the discussion of your assets/needs/expectations/desires is incredibly important. That said, if what’s established works, once the discussion is over, we didn’t feel that a document re-stating the laws currently in place would be particularly helpful…

    • http://cuvikingadventures.blogspot.com/ Jenny- Adventures Along the Way

      You said the other day that you were living in Québec, right? I think I might be remembering that right…? Do you know if those provincial marriage laws are online, or do they have to be requested or something?

  • Jaya

    “But the shortcoming is not that my wife and I may or may not get divorced. It’s that prenuptial agreements do more in the present tense than wills do.. . .Your will does not generally prevent you from doing whatever you want with your own money until you die. It’s all your own financial decisions along the way. The will just allows you to make a couple of extra ones from beyond the grave. In marriage, however, the financial decisions are not yours alone. What you do with your money impacts your spouse and vice versa.”

    Help, I’m confused! From what I gather you can make all of these joint financial decisions, like having separate checking accounts or going “all-in,” without the aid of a prenup. The prenup only comes into play in the event of a divorce. Is that right? How does the prenup do more in the present tense than that?

    • Amy March

      Exactly. I’m curious- does your pre-nup impact creditors’ ability to reach assets that your pre-nup treats as separate, but state law treats as joint? What happens if you leave the workforce, and your wife stops paying into the joint fund?

      • Rose

        Good question! We weren’t really thinking about creditors, so that’s not an aspect we focused on, but I would think that our separate bank accounts that we have chosen to keep treating as separate property remain subject only to our own creditors and googling suggests I might be right on that. See http://www.forbes.com/sites/jayadkisson/2012/05/20/community-property-and-creditor-debtor-law-explained/.

      • Ambi

        AMY MARCH, this is a HUGE question, and I am so glad you brought it up. I can’t offer any answer, but I will say that anyone planning to maintain separate finances in marriage, even if they execute a prenup on that issue, should definitely still research their state’s laws regarding asssets that creditors can reach. My friend recently went through this. They have had, since before they got married, an agreement (but not a formal prenup) outlining that they would maintain separate finances of the type described in the original post. She puts money into their joint account and then the rest into her own personal account. Well, her husband, prior to marriage, bought a house that he planned to flip, and then the housing market went to shit, and suddenly she is in the position of having to fight with creditors about whether they can reach the money in her own personal account because, under the laws of our state, it is still considered their joint marital property. Y’all, if you want to maintain separate finances, PLEASE look into this issue. No one plans on having creditors come after their assets, but sometimes it does happen, and this isn’t something you want to end up surprised by!

    • Rose

      You can definitely make those decisions without having a prenup, and the provisions that Dan described, as to whether property is separate property or not, would really only have effect in the case of divorce. We did choose to include some provisions governing our taxes that affect us on an annual basis, but those are far from standard.

    • Sarah

      Jaya,
      I think you are completely correct. This kind of bothered me in the post. Because, yes, you can use a pre-nup to make legally binding any financial decisions you want to make for your marriage, but it is unlikely that you need such decisions to be legally binding unless you are having problems that need to be settled by a court of law (or maybe a mediator). So, as long as your marriage remains friendly, just having discussions about how you will handle money is sufficient.

      • Rose

        Agreed that financial decisions likely don’t need to be legally binding if and until a divorce (or maybe issues with creditors, as Amy March raises above), but we found putting our thinking about finances down on paper to be incredibly helpful, in addition to providing the legally binding document if anything ever does go wrong.

      • http://unexpected-moments.blogspot.ca/ Sheryl

        While I think the conversation and joint decision about how to handle money probably is the most important thing for some people just putting things in writing and making them legally binding gives a sense of security, or that having it all legalized helps them live with it. What works in one relationship isn’t necessarily going to work in another.

    • ElisabethJoanne

      I can’t speak for Dan, but as another attorney, I can tell you that it’s really hard to live according to important decisions that aren’t legally binding, when you’ve got tons of training and experience in all the legally binding stuff. It’s just hard to divide your mind up that way. So it may be a peace of mind thing.

      Also, ALL marriages end. Some end in death. Some end in divorce. For both situations, the government usually has to figure out what is community/marital property, and what belongs to an individual spouse. This is often the case even when the spouses have wills leaving everything to each other.

  • Meredith

    Thank you for writing this! We got a pre-nup that states exactly what yours states, because the laws in our state do not reflect what we envisioned for our finances in our marriage. We treat the pre-nup as a template for how to manage our finances rather than something only to be looked at in the case of divorce.

    Interestingly, the lawyer we went to gave us SO MUCH SHIT for wanting a pre-nup. He was convinced that I was hiding lots of money somewhere, because otherwise, why would I want a pre-nup? We got lots of unasked-for marriage advice because he was convinced that our marriage would fail. He also turned it into a very adversarial situation where, because my then-fiance was the one who called him to arrange the appointment (just because he was the one who had time to do it), he was “his attorney” and I needed “my OWN attorney” to argue over the details. When I stated that I would serve as my own counsel (advocating the positions that my now-husband and I had JOINTLY AGREED UPON), he treated me like this evil bitch.

    My husband and I are very happy that we got a pre-nup and essentially tweaked the law to our own preferences and ideals, and I would recommend it to others, but I would caution others to choose your lawyer carefully and be prepared to put up with some really un-feminist and un-cool shit (and we live in a large, liberal city no less).

    • Amy March

      Many lawyers would consider failing to strongly urge both parties to a contract to seek counsel malpractice, and ethics rules typically counsel against joint representation for pre-nups.

      • Ambi

        I second this. As a lawyer, I would view it as a conflict of interest to represent both parties in a prenup, even if they walked into my office in complete agreement about what they wanted. I may end up drafting the exact agreement that they originally requested, but first I have an ethical obligation to make sure my client knows what her rights currently are under the law, what her options are as far as contracting on each issue, and I should discuss each issue with her in order to explore what would be in her best interest. I know this seems like bullshit legal red tape that only makes the system more expensive and difficult, the conflict of interest rules are serious business. Not only could the lawyer have gotten into ethical trouble if he had represented you both (and when your entire livelihood depends on maintaining your law license, you generally don’t play fast and loose with rules that can put that license in jeapordy), but he would also not be providing the full services for which you were paying had he not fully explored his client’s rights, options, and interests in the contract. Moreover, confidentiality issues come up, too. For example, what if he represented you both, and you asked him privately “I had credit card debt that I have fully paid off, but I’m worried that it may have hurt my credit score. I’m embarrassed of my past debts, and I’d rather my husband not know that I was ever in that situation. Do I have to disclose this to him?” your lawyer is now in a compromised position. Your interests in being able to seek confidential advice conflict with your fiance’s interests in knowing about the past debt. Also, what if only one party in the couple is paying the attorney. That can lead to allegations of bias and unfair dealing if he is trying to represent both parties. See how this can very easily get tricky? We are taught in law school that you don’t wait for an ethical issue to arise, you address potential problems before they happen, and if there is even a potential for a conflict of interest, you can’t represent both parties, period.

        Of course, it should also be understood that even if a lawyer advises his client that it is, for example, in his best financial interest to stick with the state’s laws regarding division of property, the client is free to decide he’d rather do something else (like enter into a prenup that is more favorable to his spouse than the existing law would be). It is simply all about making sure your client is making an informed decision.

        So, basically, I completely agree that the lawyer did the right thing in insisting that he could only represent one party, and under most ethics codes, that would have to be the person with whom he has already spoken about the issue, because if he were to represent you instead of your fiance, after the fiance has called him to set up the appointment, he could be violating the conflict of interest rules by gaining information from your fiance and then using it against him when advising you. That’s a big no-no.

        However, no attorney in this situation has any right to be rude to you or treat you like you’re being a bitch. That is completely unnacceptable, and I would suggest that anyone involved in this type of situation simply discuss it with your fiance and ask him to fire the attorney and find another who can explain the rules more civilly. Do both parties need attorneys? Probably so. But does it have to be adversarial and unpleasant? Not at all.

    • Class of 1980

      I once worked for an attorney where I could hear some of the conversations in his office through the door. Normally, it was boring stuff. But I’ll never forget the man who came in seeking a divorce who WANTED to give his wife of 20-something years substantial alimony. He had already determined the sum.

      The attorney did his best to talk him out of it by downplaying her role in the marriage. He didn’t care that this couple was amicable and in agreement.

      It was ugly.

    • ElisabethJoanne

      What Amy March said. Your lawyer had a professional responsibility to make 110% sure both sides were disclosing all assets and debts.

      It’s also often a lawyer’s job to give not-quite-legal advice based upon our training and professional experience. I could totally see a lawyer counseling regarding a pre-nup advising on how to hold your bank accounts, how to pay bills, how to budget, etc., even though these things aren’t directly related to drafting the pre-nup. As for “never go to bed angry” and the like, well, some lawyers have bad people skills.

  • Ash

    I should (and will) seek some professional advice about this, but I’ll throw it up here too:

    I’m in an international relationship. We haven’t yet decided in which country we will get married. We haven’t yet decided in which country we will live- and even once we do this will probably change over time.

    Which laws apply?

    • Not Sarah

      I think that the laws of the state/province/country where you get divorced apply? And if you don’t get divorced, none of this matters.

      So I would say that a pre-nup is most important when you don’t necessarily know what laws you would fall under when you divorce. I remember someone commenting on another pre-nup post that if you like the laws of your current state, you should draft a pre-nup to that, in case you end up in another state later. Same goes for countries, I suppose.

      (I have no real idea, but that’s my guess.)

      • One More Sara

        I would also go so far as to say you may need to get the document notarized (or something) and possibly translated in your country of residence. I’m not sure how contracts work once you cross international borders, and it likely changes from country to country.

    • Ambi

      ASH, it is my understanding that one of the great things about a prenup is that, like any contract, the parties can agree about which law they want to have govern that contract and put that as one of the terms within the contract. There is an entire body of law on this issue (the topic is called Choice of Laws and is generally known to be one of the most abstract, complex, and confusing areas of the law – fun stuff!), but the general rule is that parties can choose to add a choice of law clause into their contract and thereby agree that, for example, Arkansas law will govern it. There are definitely exceptions (for example, most courts want the law you choose to have some relation either to the contract (for example, you signed it in Arkansas) or to at least one of the parties (for example, you currently reside in Arkansas). Companies do this all the time by including provisions in their contracts that mandate that Delaware law will govern the contract (because Delaware law is viewed as the most business-friendly, and because therefore most large companies are incorporated in Delaware).

      So, in this situation, I think it would be appropriate (and really smart!) for you two to decide at the outset which law you want to be controlling for the interpretations and/or enforcement of your prenup, and include that as a provision in the contract. In fact, doing this may be reason enough to get a prenup even if you weren’t going to get one otherwise. You may be generally fine with marital laws in the US, for example, but if there is good reason to believe that you may be living abroad in the future in a country with marital laws that you may not agree with, deciding now that any future legal action regarding the marriage, including division of assets and divorce, would be governed by the laws of, for example, Arkansas in the United States, would be a good precaution. Now, I can’t promise that, say, China or the UAE or wherever you happen to be in the future will give that choice of laws provision the same weight as a US court would, so that is something you’d need to check into. And there will probably be things that you can’t contract away – for example, I don’t think that you can choose which law you want to apply to child custody actions. So, sadly, I think that talking to an attorney may be worth it for y’all. But hopefully this gives you a few things to think about.

    • ElisabethJoanne

      For a divorce in California (a tiny part of the world, so totally not solving your situation, but giving an example), it will depend on where the asset (or debt) was acquired during the marriage. So a retirement account from when you were living in a place with community property will be split 50/50. A retirement account from when you were living in a place with separate property will go to the working spouse.

      A pre-nup must be in the proper form for where it is executed and the jurisdiction “presiding” at a marriage. [A pre-nup signed in Arizona for a wedding in California has to match Arizona and California law.] This may include being notarized, but the lawyer helping you will know all that. A court has to understand a document to enforce it, but the document doesn’t have to be translated before it’s filed with the court. Both spouses do need to understand it when they sign it, though. So it can’t be in a language only one of you understands. In the U.S., I don’t think pre-nups are filed with the court before divorce proceedings.

      I know some jurisdictions just don’t honor pre-nups. If the divorce happens in one of those, it’ll just be meaningless.

  • KT in KC

    Oh. My. Goodness.

    I’m an attorney, and I’m getting married in 8 months to an absolutely wonderful man…who unfortunately is not all that wonderful when it comes to his finances…if he had any to begin with…Yeah. That financial-inequality dynamic. Fun times.

    Throughout our engagement and relationship, I’ve found myself saying to myself, “You know, if you were outside looking in, you’d be advising yourself to do things totally differently.” As in, I’d advise myself to get a pre-nup. But then I’d say in response, “Nah…I love him. He’s wonderful. And we’re wonderful together. We have great communication, and we always, always work things out for the best of both of us. Pre-nups are for people who have doubts about – or little faith in – their relationship, their commitment to their spouse, and themselves.”

    But this article has totally changed my perspective on getting a pre-nup. It’s not a bad thing after all, and it doesn’t essentially, automatically mean you have doubts of the relationship, commitment, or yourself. “Having a prenuptial agreement is about being proactive with your finances….[A]fter going through the process of entering into one, it’s almost impossible not to be on the same page about your finances. Isn’t that how every marriage should start out?” ABSOLUTELY!

  • Chalk

    This was a really well written post. And the comments make great arguments for and against prenups. The argument for each side of the issue is so compelling, which is why I struggled with my own decision.

    I recently moved past this issue with my fiance and my family. My mother, who went through an expensive and nasty divorce, told my fiance and me that she expected us to get a prenup. Neither of us felt comfortable with a prenup, but I looked into it anyway so I’d at least have a substantial counter argument to the questions I knew my mother would ask. And maybe in the process I’d learn something I didn’t know about prenups and change my stance.

    One of the lawyers I consulted stated that the prenup couldn’t be signed under duress. Even though I think it’d be pretty hard to prove “duress” in our case, I knew in my heart that my fiancee would have been devastated to sign the contract, and I would have felt guilty and uncomfortable with the message I knew it was sending him. When we took an honest look at what we were about to do, we agreed that the contract would be signed under duress, and therefore we could not sign it.

    My family is upset with me for marching toward my marriage with my (read, their) assets exposed to risk, but at the end of the day, I don’t fear the loss of assets like they do. I’m at peace with our decision, which is further confirmation that we made the right choice for us.

    • meg

      It becomes so interesting when there are family assets, and the family thinks they are THEIR property, even if you are the one inheriting them. That said, I have heard of trusts from which you cannot inherit without a pre-nup, which at least takes some of the emotion out of it.

      • Chalk

        My family did try to use giving me full control of the trust as leverage to sign a prenup. It’s situations like this that give prenups such a bad reputation – they can bring out the worst in people. We don’t hear enough about how the bring out the good in people, which is what makes the comments to the post particularly interesting.

    • ElisabethJoanne

      “Duress” often comes up when the pre-nup is completed close to the wedding. Then it’s, “Sign this or lose thousands in deposits” and “Sign this or be thoroughly embarrassed.”

      Knowing this, early in our engagement, I asked a family law attorney when he’d like to see a pre-nup completed, to avoid any timetable duress issues. He said six months before the wedding.

      • CRB

        Yes, yes, yes! Besides avoiding duress, there is the very real challenge of working through some big issues when you’re already stressed out. We finally signed about a week before the wedding and whoo-whee were there a bunch of unnecessarily difficult evenings. Which may or may not have included throwing the damn thing across the room.

        In the end, though, we were happy that we signed it, and very comfortable with the terms. It helped us work through a lot of the details of our slightly complicated financial situation (student loans, trusts, homeownership, etc.). And ended with me feeling MORE secure in our marriage, despite the fact that I came in with fewer assets (and was therefore the one being pre-nupped “against”).

        Aside: I don’t really think (thoughtful) pre-nups have sides – we ended up fighting FOR each other’s benefit, which is kind of romantic. Take that, bad pre-nup rap!!

  • Tatyana

    This article is so clear and elegant that it almost makes me want to accept what Dan is saying, at the same time, the reasoning behind it still brings me back to to that, if you need a pre-nup, should you be getting married thing. I just can’t seem to get past the fact that in a marriage, everything should be shared. Everything that I acquire, whether it is a paycheck, an inheritance, or a bottle of nail polish is something I am willing to share equally with my future husband – and I would never want either of us to feel free to make an extravagant purchase without consulting the other one. Perhaps this is an unpopular opinion, but I think that the idea of what’s mine is yours is completely inherent in marriage.

    • http://minnesota-chic.com PA

      I struggled with the same feelings as I read, but in the end I came to two conclusions.

      First: there is the inescapable fact that no two couples or situations are alike. For example, there are couples who are happily married, but maintain separate households – certainly not a thing for everyone! There are couples who have one spouse stay home to raise children, through free choice or through necessity. In fact, I would stake money on the fact that every marriage, bar none, has some feature/agreement/quirk that would not work, or not be necessary, for a significant number of other couples.

      A marriage is a union of two people who, both separately and together, are different from any other two people or couple in the world. There are so many variables in play that it’s reasonable to expect their financial and emotional needs will be also be different (however slightly) from other couples.

      The concept and ideal of marriage (which, it must be said, has been highly changeable over the years) now occupies such a complicated place in our hearts, such an emotional place, that I think sometimes we are afraid to treat it as we would another institution or concept. “Hope for the best, but plan for the worst,” is a common adage, but might seem to violate the covenantal relationship marriage establishes. However–to return to the main point–planning for the worst might be a piece of emotional and financial security that provides incredible peace of mind to a spouse or couple.

      The second conclusion builds off the previous paragraph: “Hope for the best, work for the best, plan for the worst.” People don’t go into marriage planning to get divorced (at least, I hope they don’t). And yet many couples do get divorced, for a wide range of reasons. Especially for people who have seen loving couples starting with an amicable separation and ending with a bitter divorce, it stands to reason that steps would be taken to make things less awful in a situation that would already be highly emotionally charged.

      • Tatyana

        Thanks Pa, I really need to remind myself that people have all kinds of relationships that make no sense to me. I find people close to me telling me things that sound completely off-base, like that I shouldn’t share every tidbit about my life with my partner, or that we shouldn’t share all of our money. I dream about my marriage being like a visit to Disney World, always walking around holding hands, with some slightly scary rides in between. That’s probably unrealistic too and people like Dan would certainly not feel that my lifestyle suites me. This post has served as a great lesson to me, not about pre-nups, but about just how different everyone is, even in such a small niche group.

        • http://minnesota-chic.com PA

          I’m glad that it helped! :)

          I dream about my marriage being like a visit to Disney World, always walking around holding hands, with some slightly scary rides in between.

          That is an AWESOME description of marriage. (Or hope for marriage.) I’m now picturing trials and stresses in the same way as those terrifying rides that make you draw closer together and laugh, a bit hysterically, while your legs shake.

      • meg

        Also, frankly, a pre-nup can not even be about planning for the worst. It can be about coming to a clear decision of what you believe, and what the rules that govern your relationship financially are. Having that conversation and coming to clear conclusions (and keeping track of if those conclusions change over time) is good for your relationship in the present, I’d argue.

        • http://minnesota-chic.com PA

          This is a good point – going back to Dan’s explanation that the pre-nup is also about what happens during the marriage, not just what should happen in the case that it ends.

          And, while it’s becoming more common for people to know they need to discuss these issues before marriage, you bring up the VERY good point that priorities, habits, and conclusions change over time, and the conversation should be held regularly! I hadn’t thought of that.

        • Ambi

          Yes. Tatyana says that the idea of what’s mine is yours and whats yours is mine is inherent in marriage – but the key question is whether her future spouse also views things exactly the same way, and whether this is going to be a fundamental financial priniciple in their marriage. I’m not saying it should or should not be, and I’m not assuming that y’all aren’t in complete agreement already. I’m just saying that prenups allow you to fully lay out these things ahead of time. In an ideal world, everyone would have these discussions and reach these agreements prior to getting married, whether they got a prenup or not, but in reality, sometimes the options seem to be Unromantic Prenup Negotiation or Blissful Ignorance. But it doesn’t have to be that way! Maybe your prenup conversation goes something like this: “Honey, I believe that, the second we get married, we share absolutely everything equally – debt, assets, bills, future earnings, medical expenses, family inheritances, everything. Do you agree? Yes? Great!” But at that point you are light years ahead of the couples who don’t have that conversation until Great Aunt Ethel passes away and leaves your husband her life savings with the explicit instructions that in no event should you get any of it. Or when, god forbid, you find yourself going through a divorce in a state where their state laws do not reflect your “we share everything equally” mentality. The whole point of a prenup is just to figure this stuff out ahead of time, not to necessary reach any conclusion other than “we share everything equally,” which can absolutely form the basis of your prenup!

    • Marina

      A pre-nup isn’t necessarily about who’s getting what, it’s about whether you agree with the laws of the state/country in which you may get divorced. Perhaps you would want a pre-nup to specify that all the assets you come into the marriage with should be evenly divided in case of divorce, rather than remain with the person who brought them in if that’s what your state’s law says.

    • meg

      Well, in theory I personally agree. Sort of, at least. I am a strong advocate for financially supporting each other in marriage (which Dan is doing, for the record), and personally believe in marital assets being split (I live in a community property state, so I’m good there). Even then though, it’s nuanced. We still have separate accounts (though the money is co-owned), and I don’t have to consult my husband when making a purchase, nor does he have to consult me. For us, that’s not how marriage works.

      Which, in the end, gets me back to the point of this article for me. Marriage works different ways for different people. And if the way it works for you is not the way it works under the laws you are governed by, Pre-nups allow you create a private law that works for you. And just because you want to share every bottle of nail polish doesn’t mean that’s what makes a marriage for everyone.

      (And that’s not even going into the wealth of other issues laid out in the comments, like pre-nups protecting women who stay home in the event of divorce, or pre-nups to govern the state law you’ll be subject to in the event of divorce, or pre-nups to protect family assets or small businesses.)

      • ElisabethJoanne

        Also, if you’re in a separate-property state, you’re not sharing every bottle of nail polish, legally. I don’t think anywhere in the U.S. are you sharing inheritances, unless you take affirmative steps to do so.

        So, Tatyana, I’d encourage you to find out if the laws of your jurisdiction embody your “everything shared” view of marriage. Now, not everyone needs the legal terms of their marriage contract to match their more spiritual ideas (see above about a non-enforceable marriage treaty), but some do.

        • Tatyana

          I suppose that last statement describes my relationship. We have an understanding as to how we make financial decisions and that personal understanding is sufficient for our present needs. I rarely think about marriage as a legal agreement, but rather a personal commitment and although not written, our oral “marriage treaty” is in the works. I realize that love doesn’t conquer all, but I’d hope that great mutual respect would allow us to deal with most situations with some sort of grace. Thank you for allowing me to realize all of this.

    • Rebecca

      Thinking that everything should be shared is one of the reasons, after reading this post, my guy and I are thinking about pre-nups. Because it turns out that, depending on where you live, the state law might not agree with you!

      We live in a common property state (and are planning on moving to another one), and frankly, we like common property rules. They make sense to us. However, we’re planning in the next 5 years or so to move (again), probably to a non-common property state- there are, after all, only 9 or so of them. So now we’re thinking about a pre-nup as a way to say “You know those rules we agreed to at the beginning? We want to follow those rules- not have them change 5-10 years into our marriage just because we live someplace else.”

      • meg

        See, this is a reason that never occurred to me to have a pre-nup until the comments today. The fact that a partner can move to another state, file for divorce there, and those laws apply is… distressing. Or I think it’s distressing.

        • Rebecca

          Me either! Which is why APW is so awesome.

          And can I put in a vote for wedding elf categories for pre-marital counselors, certified financial planners, and lawyers that specialize in pre-marital stuff? Because that would be super cool. (I have faith that it has already been considered. But I am voting anyways.)

    • Diane

      Not sure anyone will see this because it’s late but my mom and stepdad recently celebrated their 20th anniversary and have a thriving marriage. That said, my mom has explained that they have spent time working out how their assets will be divided with the death of one or both. My mom brought more assets to the marriage, most importantly the house that she and my dad purchased when they were still married and savings that she had carefully amassed by living frugally and working hard. My stepdad came in with fewer assets. He has 4 children, my mom has 2, and there are no joint children. Their legal arrangement dictates that if my mom should die first, my stepdad can stay in the house as long as he chooses but he can not sell it without my brother’s and my permission and on his death the house would go to us. Seems fair — our parents originally purchased it and a combination of my dad’s child support and my mom’s income paid for most of it. The grand piano in the living room that my stepdad brought to the marriage will go to his children, again seems totally fair. I don’t remember the details of how joint financial assets are divided — if it’s in even sixths or if my brother and I each get a quarter and my step-siblings each get an eighth. For my mom and stepdad, though, creating this wasn’t so much a question of sharing their own assets and earnings as it was protecting their children and limiting the legal ugliness that could take place should, say, one of my step-siblings try to lay claim to a portion of the value of the house or to savings that have remained in my mom’s name. I am not close to my step-siblings but I do feel that money that my mom earned before we knew they existed, money that is there because we almost never ate out and usually wore hand-me-down clothes, should go to support her children and grandchildren, assuming of course there is money left then when she dies. If she at some point she feels otherwise then I will honor that gladly but for now I appreciate that they didn’t just say “all of this is both of ours, full stop.”

  • http://www.spottytypewriter.com/ Kerry

    Dan!

    I will not lie, I had no desire to come read this post. In fact, I think it might have been an errant mouse-click in my reader that got me here, as I have very-few-to-no thoughts about prenups and legalese makes me ill.

    But – you are a super writer, my friend. You made this interesting and friendly, and I finished the whole damn thing and even had a few thoughts along the way. Well done.

  • Ash

    Kerry said it! Interesting and thought provoking stuff.

  • Mia Culpa

    Hooray for this post, and for Dan being so eloquent. I hate how talking about pre-nups are taboo! I made a point of being really matter of fact in talking about getting one when people would ask me about my wedding planning – it was just part of the checklist to me, and more important than the damn favors. I also really enjoyed and appreciated the process of getting a pre-nup. My husband and I had never really talked about our debt and our finances in depth before, and working on things like an assets discovery questionnaire was really eye opening. So even though we went into the process thinking of protecting each other from our separate debts, we came out of it really thinking about what our net worth meant and how we could build a better financial future for ourselves together.

    It’s important to remember that no pre-nup is the same, and like my lawyer told me, a pre-nup is a mutable document that can change along with your needs. We opted out of communal property to keep creditors away, but we put an expiration date on that of five years from the date of our marriage. That’s what worked for us, and we can always change our minds later.

    And let’s be honest, our assets may be separate, but they are separate together. We’re not splitting the check when we go to a restaurant, or tallying up who bought groceries that week – we’re flexible and we spend our money on our little baby family. I just had to go through an emergency gallbladder surgery, and so my husband is taking on some more of our shared bills while I’m paying my medical bills. “What’s mine is yours” still exists for us, just in a slightly different way.

    • Anneka

      THIS. ‘Our assets are separate, but they are separate together’. So true.

  • Anneka

    Great post indeed, Dan!

    My parents got divorced after 12 years of marriage and because they didn’t have a prenup what followed was a long drawn out legal battle that destroyed what little respect my mom and dad still had for each other. Yes, by law their assets had to be shared, but my mom had stayed at home for 10 years to look after me and my siblings and my dad fought teeth and claw to make sure that she didn’t get a penny of those shared assets. His argument? He had been the sole breadwinner for the duration of the marriage and my mom had contributed… nothing.
    I know this is the worst case scenario but I also think it’s naive to think that love conquers all, even when it’s gone. Break ups involving money, hurt feelings and disappointment more often than not bring out the worst in people. A prenup would give me peace of mind because I’d know that if things go badly wrong at least there would be fairness and it would prevent me from becoming bitter and resentful and wasting my time arguing over money.

    • Class of 1980

      The idea that a person who stays home and wrangles the children and runs the household does NOTHING is illogical. It’s also a new idea.

      Little known fact … the very early feminists (1800s) in America were not fighting for women to go to work. They were fighting for mothers not to be forced to work in factories by advocating a government salary for them to stay with their children. I don’t agree with that, but understand where they were coming from.

      When I was growing up, stay-at-home mothers had alimony as protection. Alimony was for life or until you remarried.

      Now we have absolutely nothing as protection except a pre-nup.

      I have yet to figure out how this is progress.

      • Anneka

        Illogical doesn’t even begin to cover it!
        Alimony is still alive and well where I come from but I really wouldn’t want to rely on it. I’ve seen it too many times (4 out of 6 women in my family are divorced – I think it’s probably genetic, hence my desire for a prenup) how the ex-husband with the help of a good accountant hides most of his assets in an offshore account and the ex-wife is left with nothing, because where there’s no money there’s also no alimony.

        • Class of 1980

          Absolutely, there is no alimony where there is no money. And clearly, alimony would never protect a spouse when the couple is already living in poverty.

          Anyway, I think most states only award alimony for a couple of years or so, and consider it rehabilitation money – something to fall back on just to get back into the workforce.

          That’s a far cry from the alimony of the past which was for life or remarriage. We don’t even pretend to protect stay-at-home spouses anymore.

          • meg

            This is so fascinating to me, and something I hadn’t really pondered till today.

  • Kara

    Anyone know anything about the actual enforceability of prenups if they protect the couple “unevenly”?

    • meg

      Again, obviously, consult a lawyer on ALL of these questions, and I am in no way giving legal advice. But, the general rule is that pre-nups are contracts, and contracts are creating private law. You can agree to anything you want, as long as it’s not in conflict with public law (aka, illegal). So you could agree to something crazy (I must give you 100 kittens if I file for divorce), or something totally uneven (I will give you all my things if I file for divorce), and as long as you both sign it voluntarily, it’s a contract.

      Not that you can’t fight it later in court, of course, but it’s harder.

      In *theory* marital law is set up to make things equal (these days), and pre-nups allow you to change that if you want.

      • Ambi

        Hmmm . . . obviously this is not legal advice, but when you mentioned that standard contract law would apply it suddenly rang alarm bells in my head because, legally, in order for a contract to be enforceable, it must be supported by consideration on both sides. Consideration is a legal term to describe one of the essential requirement of a legally-binding contract. Consideration occurs when a party either agrees to do something she has a right not to do or agrees to refrain from doing something she has a right to do. Consideration must have objectively-quantifiable value, so things like love and affection are not recognized as enforceable forms of consideration. This made me question whether, in order to be enforceable, both parties to a prenup had to be giving up something (in order to establish consideration on both sides). So, I looked it up, and apparently this IS an issue, but most states have passed a form of the Uniform Premarital Agreement Act (UPAA), which allows prenups to be enforceable without consideration. So, the moral of the story is to check into your state law regarding the enforceability of prenups, because while in many states they can be “uneven” and still enforceable, in some states that type of prenup would be viewed as a legally unenforceable promise rather than a binding contract.

        • Kara

          Thanks, your answer makes a lot of sense and jives with my fuzzy family law & contracts memory. It would also explain why, in 10+ years since those classes, things have probably changed.

          Here’s to hoping that no one on here has to find out the hard way on this one!

          • Ambi

            Tell me about it! I was actually thinking that, if you both entered into a prenup that you both believed to be enforceable, and then years later found out the hard way that, under your state law it was not enforceable due to lack of consideration on one side, wouldn’t you still have some sort of detrimental reliance argument? I am way too removed from law school to answer this, but I think that most courts would be open to the argument that both parties believed they were entering into a valid and enforceable contract . . .

  • Class of 1980

    I have to say that this is a super interesting post. It’s the sort of thing you can mark for reference later.

    APW is PRACTICAL. Period.

  • Sarah

    Another great thing about pre-nups is that you can assign your assets in case of death. If you don’t have a will yet, you can include some of that in a pre-nup. So you can leave assets to a spouse and personal property belonging to grandparents to other members of that family. It is not as thorough as a will but it is better than nothing.

    • ElisabethJoanne

      This is important everybody! See what I said above about all marriages ending, usually in death. Pre-nups kick in there, too.

      Also, it’s pretty hard to execute a will before marriage that is binding after marriage. There are actually cases where someone makes a will leaving everything to their fiance, gets married to the same person, and dies, and the court voids the will because of the rule the court has to enforce the general rule (in that state) that voids a will executed before a marriage. So a pre-nup can be the only way to do estate planning in case of death shortly after the wedding, before you can do new wills.

      Personally, if I were getting a pre-nup, I’d do it all almost-together. I would talk about estate planning at the same time as the pre-nup, and get it all lined up, so I could have my new estate plan ready to go as soon as we were married.

  • Sarah

    Thank you for providing a reasoned and thought-provoking perspective on this taboo subject. The reasons presented in favor of signing a pre-nup make a lot of sense. My husband and I have completely joint finances, and I will admit there are times when that results in tense discussions. We share the responsibility for tracking our finances using Mint (alternating whose turn it is by month), and I do sometimes wish I could avoid the questions, “Hey, what is (insert name of store, service, etc) and why did we spend (insert amount) on it last month?”

    But. My husband and I are not both attorneys with steady incomes. (I’d be curious to know if the author of the post and his wife make about the same amount of money). For the past four years, we have lived on one income. For two years, it was his income while I was in grad school. For several months after that, it was basically no income and all savings (mostly his from before we were married) while he was in grad school and I was working a low-paying part-time internship while desperately looking for a full-time job in my field. For the past year and bit, it has been my income, while he finished his schooling and then launched his own company. Starting a company has been a life-long dream of his and I am 100% on board with him pursuing that dream. But it means he isn’t making any money right now and we don’t know exactly how long it will be until he does start earning an income.

    If we paid our joint expenses through a joint account and personal expenses through our personal accounts, then for the entire first four years of our marriage one of us would not have been able to buy the other presents. When I was job hunting, I would not have been able to buy any new clothes to update my interview wardrobe. Last fall, my husband would not have been able to plan a surprise weekend getaway for my 30th birthday. That to me is not a recipe for a happy marriage.

    As such, I subscribe more to Meg’s idea of “Marriage as Mini-Socialism” than I do to the ideas presented in this post. I would argue that it may be harder, but perhaps more important, to wade through the tough stuff with your partner about what you each consider to be “extravagant” spending (and why – there are so many important things to learn about each other that can come out of that conversation), than to carve out each individual’s ability to spend extravagantly without affecting the other.

    Ultimately, I think the message of this post is hugely important – that two individuals who are pledging to spend their lives together should do so with a clear understanding of their financial lives as individuals and as a couple. Figuring out how to do that is the tough part, and there’s not necessarily a “right “ or “wrong” way. Thanks very much to the author for sharing his perspective on the benefits of coming to that clear understanding through the development of a pre-nup.

    • Rose

      I make about double what Dan does, but we do have steady incomes, so I imagine that affects how we deal with joint money and joint expenses, though not as much the concept of having a framework where we have to affirmatively decide to treat money as joint.

  • Sara

    This has really opened my eyes to what a pre-nup actually entails. I always thought of it as something people with a lot of money do to protect themselves, but the reality is actually very grounded and practical (duh, its on APW).

    Regardless of whether a couple does obtain a pre-nup, I do think how they will deal with assets is a very important conversation that they should have. Money can make people ugly no matter whether it is too much or too little, and understanding how your partner views money is so important. Yet many people just ignore it, and that’s so sad.

    Thanks for the great article!

    • Ambi

      This is SO true. And it is also why I think many of us are a bit afraid of that prenup conversation. I love my partner, and we both share the view that marriage means sharing everything, including assets, debt, earning, etc. – however, there is a big difference between talking about that in the abstract and saying “Sweetie, when you inherit a massive amount of money from your parents (which we know you will), there isn’t going to be any issue with me inheriting that equally with you, is there?” or “Honey, let’s talk about my student loan debt and whether that is going to come out of our joint checking account or if you expect it to be paid out of my separate account.” or “Baby, right now I am making more money than you, but we need to talk about what may happen to my future earning potential if we decide that I am going to leave the workforce for a few years and raise our children” or even “Dear, we need to map out some rules for how we plan to handle marital disputes, such as whether we will discuss issues like infidelity with our friends or family.” I love the idea of a prenup, but I dread these conversations. I know that there is no way we will just happily agree on everything without any conflict or argument. Prenups are hard, not just because of the cultural taboo but because they force us out of our comfort zones. Not having a prenup is just easier, so I think sometimes people use the cultural taboo almost as an excuse for not having to have these difficult conversations. But they are worth it, because not getting a prenup may be easier now, but having one will make things easier for the rest of your life. Even if it never has to be legally enforced, it still gives you a framework, general guidelines for your relationship, and most importantly, peace of mind during tough times. I firmly believe that when a couple is going through a difficult period in their marriage, having to also worry about the financial implications of a possible divorce can only make things much worse. Ideally, a good prenup allows you to focus on the real problems you may be facing in your relationship without thoughts like, “If we’re going to get a divorce, I need to start socking away money now to protect myself,” or “Our marriage is on the rocks, maybe I should consider divorce now instead of wasting years in counseling because at least I’ll be better off financially if I don’t dump several more years of earnings into our joint account” or “Get out of this house – it’s mine, I inherited it from my mother, and I’m kicking you out.” Unfortunately, as soon as a relationship has problems, money becomes inextricably linked to how you think about them. I have already experienced that just living with my boyfriend – in the middle of a fight I’ll start thinking about how I shouldn’t pay him rent this month and instead use that money to hire movers and get my own place. If you start thinking that way in the midst of a rocky spot in your marriage, it can make it that much more difficult to work through the underlying issue, and it can often create unnecessary conflicts and additional problems. So, to me, a prenup that spells out how all of this would work and forecloses, for example, the possibility that one spouse could kick the other out and claim sole ownership of the home she inherited, could save you a lot of strife down the road.

      • ElisabethJoanne

        I like that way of thinking, though I recognize not everyone will like it, or really be able to hold together in their minds the financial implications for years down the road of relationship decisions today.

        While I relate to some of your experiences about thinking about the financial implications of ending a relationship, and of resentment creeping into a relationship when it comes to finances, I have also found in the last few months that when it comes to my relationship with my fiance, I can’t predict how I’ll feel about the money stuff. He moved in entirely unexpectedly in June, and all sorts of resentment popped up immediately – sharing an apartment I worked hard to be able to afford and decorated to precisely suit my tastes, the higher grocery bill that wiped out all discretionary spending. Had you asked me before it all happened if I’d get resentful, frustrated, and angry at the situation, I’d have said, “Of course not. I love him. You do what you have to, and you smile through it.”

        Although I think lots of the bad feelings were the unexpected change, and it being before the marriage. Married, I’m obliged to provide for his necessities. Before, it’s just gift (or implied cohabitation contract). I know a lot of people would be aghast at my feeling differently about taking care of him before v. after marriage, that they don’t expect marriage to change the feelings aspects of their relationships. I’m not one of those people.

        • Ambi

          I kind of think we are saying the same thing, just in different ways. In my view, every single relationship is going to go through those periods of time where you feel resentful or bitter or angry about, say, having to use all of your discretionary money to allow one spouse to care for an elderly parent or allowing your college-grad stepson to move in and significantly increase the household expenses. My point was just that prenups can be helpful in providing a clear framework for working through these times. It doesn’t mean you aren’t going to feel those negative emotions, but if you’ve already agreed before hand that you two will share the exprenses associated with caring for your parents or that each partner’s children from previous marriages should be treated as children of this marriage for all intents and purposes (such as for inheritance, college expenses, etc.), then even if you feel resentful about it when the day comes that you have to put those plans into action, you will also save yourself the strife associated with deciding. What I mean by that is I tend to agonize over things like this. If I were resentful of my husband using our vacation money to travel to his elderly mother’s house every weekend, I might spend days and weeks silently stressing about it and trying to decide whehter I should say something and whether it was a big enough issue to fight about, etc. – but if we have already made an agreement in our prenup, I have a much clearer baseline to guide my actions, and while I still may resent it, and in some cases I may broach the topic of changing or deviating from what we agreed upon in the prenup, I will at least have the perspective that, before I was in this situation, I viewed this kind of arrangement as fair. Are my views different now simply because I feel like I’m on the losing end of the bargain? Would I still think it was fair if I was the one using our money to care for my parent? Or to support my child from a previous marriage (or whatever your situation happens to be)? My point is just that prenups allow us to make decisions when our heads are cool, when we aren’t in the midst of a conflict, and in that way hopefully we make better decisions that are fairer to both of us.

          • ElisabethJoanne

            All fair enough, though I don’t discount my feelings under stress quite as much. In your example of the vacation money and the elderly parents, I’m not sure that the agreement I’d make now, in the abstract, likely years before it’s an issue, would necessarily be better than what we’d work out in the heat of those moments.

            To me, it’s like parenting styles. We can make some decisions before we have kids (no spanking, for example) because of really deep-seated things about ourselves we know won’t change, but I just can’t wrap my mind around other things. I know I want the option to take 18 months off around the birth of each child, but I don’t know if I’ll need it or want to take it when the time comes. I certainly wouldn’t want to put myself in a position where I’m asking to go back to work 8 weeks after the baby’s born, and my husband is resentful of all the overtime he worked expecting me to be without income for another 6 months.

            It’s like the post that ran a few weeks ago about how it’s important to discuss issues like finances, children, and illness before marriage, but you don’t have to work out all the details.

            Unless you want to.

  • Bellezyx

    FYI, pre-nups “Binding Financial Agreements” are frowned upon and routinely set aside by the Family Court of Australia. All they can do (when they are not set aside) is to exclude some assets from the couple’s pool of assets at divorce. I am pretty sure that they have to be assets in existance at the time of the marriage, rather than those gained during marriage – as in the case of NY. Also, both parties need independant legal advice and a variety of other things before it is binding.

  • http://www.dressnl.com dressnl

    I have a much clearer baseline to guide my actions, and while I still may resent it, and in some cases I may broach the topic of changing or deviating from what we agreed upon in the prenup, I will at least have the perspective that, before I was in this situation, I viewed this kind of arrangement as fair.

    Read more: http://apracticalwedding.com/2012/08/the-why-of-prenups-from-an-attorneys-perspective/#ixzz250zYTIgg

  • Dan

    Thanks everyone for the many kind comments about my essay. And thanks to A Practical Wedding for letting me be the catalyst for a great discussion. Everyone is so friendly, thoughtful and substantive, it really makes the experience of putting one’s self “out there” worthwhile. What a terrific community Meg has brought together!

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  • marybee

    Wow! Thanks for the common sense article on pre-nups. I’m getting married to the love of my life in another month, and I have lots of assets and he has none. We both have children. When I hammered out the pre-nup and he read it, he was stunned and saddened by it. Thank you for putting it all in perspective. I think this will help him think more reasonably about the whole process.

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