I’ve been feeling really nervous about getting married. A big part of this has to do with the fact that as a child I lived through the multiple bitter divorces of both my parents, and I can’t stop thinking about how statistically rare it is these days for a wedding to be “till death do us part.” So divorce—messy, painful, using-your-children-as-weapons-against-your-hated-ex-divorce—is hard to keep out of my mind even as I’m preparing to get married to a wonderful person who I love dearly and hope to be with until we grow wrinkly and bald. The idea of having a prenuptial agreement has crossed my mind, but I don’t know where to begin. I don’t even know if a prenup would help to mitigate some of the bitter conflict and navigate a more amicable divorce if we ever did need to end our marriage. However, it makes sense to me in theory that it would be easier to negotiate kind, fair, even generous divorce terms while we’re deeply in love, rather than in the middle of a relationship train-wreck. I would love to hear about other people’s experiences with prenup agreements, whether or not they think these kinds of agreements set a good tone for the relationship to come, or if they simply undermine the solid foundation for the couple’s future together.
Sincerely,
Worried About Yucky ‘Orrible Unfortunate Traumas
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Dear WAY OUT,
Hi! First of all, it’s Meg, not Liz here today. Well, Meg and some help. I have lots of things to say about prenups, so I thought I’d jump in and handle Ask Team Practical today. (Lucky you?) Now, disclaimer up front! None of this is legal advice, and if you’re considering a prenup, call a lawyer. But we can talk about general theory here.
First things first. A prenup is a legal document that you both sign because you have good reason to, NOT because you’re scared of divorce. That is, you’ve looked over the property laws governing marriage in your state or country, and because of your situation you said, “Hold on! We need to make a small change here!” Like say, you own a family castle. Obviously, you’ll be thrilled for your partner to live in that castle with you, but in case in the future you decide that you can’t live together-period-foreverever, you need to get to keep the castle because it’s been in your family since Medieval Times, and it even has your family crest over the moat. FAIR! So in this case, a prenup might be for you (please consult your local castle lawyer). But prenups are not good for a lot of other things.
Prenups are not good for:
- Dealing with your fears of divorce. Those are very legitimate, but need to be discussed with a therapist (couples or personal), because you can’t work them out through a legal document. (Also, fun fact, it’s totally not true that it’s statistically rare to be married till death, that’s a myth. If you’re in our generation, in your late-20s, college educated, and financially secure when you get hitched, for example, your odds of divorce are very low indeed.)
- Custody arrangements. If you’re worried about fighting over future kids, your therapist can help. But that’s it. Custody arrangements are decided by the court.
- Ironing out the exact terms of a divorce in advance. Can’t be done.
So what are prenups good for you ask? Basically this:
- Protecting debt, assets, or income streams that already exist, so that you won’t share them in the event of a separation.
Long story short: if you don’t have any assets or any debt, you probably don’t have a compelling need for a prenup. But if you do have major assets or debt, you might want one. I know, I know. We’re a wedding blog, and we just suggested the least romantic thing in the world: a prenuptial agreement. But from where I stand, if one of you has major assets (like a castle!), allowing for protection of those assets from something-that-you-hope-will-never-ever-happen is a sign of love and caring for each other.
To discuss this in more detail, I decided to call in the big guns. Elizabeth Clayton of Lowe House Creative has had many a chat about prenups, so I asked her to write a note about why, if you have assets, you might need one. Possibly not romantic, but really good sense. Here is Elizabeth:
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Ah, the prenup question. The first question that needs to be answered is this: do you have any major assets (homes, businesses, investments) that you’re bringing into the marriage? If the answer is no, then you probably don’t need a prenup. If you have an acrimonious enough divorce that you need to take it to court for division of assets, divorce courts will generally handle that pretty fairly (although, as in any legal situation, you would want a good lawyer). You also need to look at whether or not you live in a community property state, as this vastly changes the way that the courts see finances inside of a marriage (according to my lawyer/history-buff father—in general the states that used to be Spanish or French have community property laws, and others have changed to become community property states over the years, but most still are not). Marriage & Divorce laws vary vastly from state to state, and you need to know what the laws in your state are. But back to prenups and why you might want one.
I was at a bar recently when an about-to-be-married friend from high school asked me how many of my clients signed prenups before they got married. I told her that to my knowledge very few of them did (although I actually didn’t know, as I suspect this is not something most people discuss with their wedding planner) but that I would definitely never get married without one. I’ve never seen a group of jaws drop so fast—because even amongst a group of people who grew up in a relatively wealthy area (aka my friends from high school) “prenup” is still a dirty word.
I like to think of prenups like fire extinguishers—you really, really hope that you never need to use it, and most of us, God-willing, never will, but it’s still a good idea to keep one in the house. (Another, more Californian, simile, would be that they’re like earthquake-bolting the foundation of your house.) I like to think of myself as an eternal optimist who still prepares for the worst. Because for me, preparing for the worst lets me then put it out of my mind. I really don’t think that bad things will happen, but only by preparing for them am I able to actually not worry about them, which lets me live my life with a minimum of lying-in-bed-awake-all-night. If we look at divorce as the worst-case scenario of marriage (debatable, but for the sake of this piece we’re going to go with it) then I argue that preparing for it properly can actually let us not worry about it as much, which hopefully lets one be more fully present in the marriage.
Now, to each their own, but I’m actually a strong proponent of shared finances in marriage. BUT, I own a small business that I have built from scratch and a lot of hard work, very much on my own, and I hope to buy a house in the near-ish future, so will likely own one before I get married (current status: very much single). My personal theoretical planned prenup goes something like this—keeping in mind that I live in a community property state, and I believe in the community property concept:
- all income from my business (or other sources) becomes community property
- the ownership and goodwill of my business stays solely mine
- all equity in a house built after the marriage is community property
- existing equity in a house at the time of the marriage stays solely mine, unless theoretical-spouse buys into it
- if theoretical-spouse owns a business or a house (or other similarly large assets), the same arrangements go into place for those assets
- wills are put into place to leave the other partner the aforementioned assets in the case of unexpected death
The key difference for me is assets that one brings into the marriage, as opposed to assets built during the marriage. If you get married without any major assets (which I suspect is the case for the majority of people) then a prenup isn’t necessary. My mother was actually fairly horrified when I casually mentioned that I wouldn’t get married without a prenup, so this belief in prenups is not an idea I was raised with. My parents have always shared all assets equally, and they remain happily married after forty years (they also got married as teenagers without any money, let alone any major assets).
But despite the personal example I have of my parents long-and-happy marriage, I have witnessed too many marriages fall apart after decades, and in many cases (often because women have chosen to work less in order to raise children) the women get, for lack of a better term, screwed in a divorce. I also happen to have a father who’s a lawyer, and so the importance of a well-written contract has been impressed upon me from a very young age. Not because it’s likely that you’re going to have to enforce a contract, but because well-written contracts protect you in those worst-case scenarios. A marriage is many, many things, and one of those things is a financial partnership. So it’s logical to me that you would have a contract in place to protect you in the worst-case scenario of that financial partnership coming to an end.
I know that many people see prenups as an admission that “you’re not sure about the marriage” or “you don’t really trust/love your future spouse.” To me, they’re an admission that we’re human. That we are entering into a situation with the best possible intentions, but we acknowledge that even the very best of intentions do not protect us from curveballs—the occurrences of extreme mid-life crises, onset of severe mental illness, or even just plain old development of irreconcilable differences. I suspect that we’ve all known people who stayed in truly terrible marriages for purely financial reasons—and I seriously doubt that many of them ever anticipated being in that situation. So for me, being prepared for the worst leaves you able to focus on being your best. It actually lets you focus on your marriage without the added stress running through the back of your mind that you might be screwed financially if it doesn’t work out. Or, to go back to my original simile, because you know that the fire extinguisher is safely tucked away in the cupboard, you can focus on cooking dinner, and perhaps occasionally evaluating your electrical system, while continuing to hope that you’ll never have to use it.
A note: None of the above should be construed as legal advice of any sort. As with any contract or legal situation, it is really, really best to have it reviewed by separate legal counsel for each party. Marriage & Divorce law is full of precedent, and it varies greatly from state to state. That said, most prenups aren’t particularly complicated contracts and it shouldn’t cost very much to have one written or reviewed by a reputable lawyer.
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So, Team Practical, what are your thoughts on prenuptial agreements? If you had one, do you have advice? For the JD’s in the house, what do you have to add?
Photo by Katie Jane Photography.
If you would like to ask Team Practical a question please don’t be shy! You can email Liz at: askteampractical [at] apracticalwedding [dot] com or use the submission form here. If you would prefer to not be named, anonymous questions are also accepted. Though we love a good sign-off, like WAY OUT up there.
