First, I’m happy you are in love (hooray for love!). Even though I have spent the last thirteen years working as a divorce attorney, I believe wholeheartedly in love and relationships. I want yours to be perfect for you, and I want it to last. But as the cofounder of Love & Real Life, an experienced Family Law attorney, and a Mediator, I also want to talk about premarital agreements and address some common misconceptions (like the idea that women in love don’t need or shouldn’t want one)—but first, a little lesson on the law.
You Already Have A Prenup (You Just Didn’t Write It)
Did you know that when you get married there are laws that say what will happen if you get divorced? Legislators in each state (divorce law depends on the state you file for divorce in, not the state you get married in) have created a system that they believe is “fair,” and it applies to everyone who gets divorced and doesn’t have a premarital agreement. So basically, if you don’t have one, some legislators (mostly white men) have written one for you. That’s right. You already have a prenup—you just didn’t write it. In fact, you probably don’t even know what it says.
The system actually can be fair—but not always and not for everyone. And certainly not if you didn’t know what the rules were when you entered into marriage. Would you ever play a game without knowing the rules? Probably not! But getting married without knowing these rules is doing exactly that—and in this case, it can hugely impact your life.
First, A Quick Legal Lesson
Each state has different divorce laws, but the two main categories of marital law are equitable distribution (most states), and community property (a handful of states). I am licensed in California, which is a community property state.
To dramatically oversimplify the “rules” in California, everything (with a few exceptions) that is acquired (like a house), earned (like income), saved (like money), accumulated (like retirement benefits), or incurred (like credit card debt) from your date of marriage belongs to both you and your partner—no matter in whose name it is held. (One notable exception to this rule is student loan debt, which almost always remains attached to the person who took out the loan, even in the case of death or divorce.) That means that if you and your partner decide to divorce, all of the assets and debts are put in one big pot and divided in half. A lot of times, this is not how married people operated around finances during their marriage.
In equitable distribution states, assets and debts are treated a bit differently. Everything acquired, earned, saved, accumulated or incurred during marriage belongs to the person who acquired it or in whose name it is held. If an asset or debt is held in joint names, then it belongs to both spouses. But, even if an asset isn’t held in joint names, a spouse has the right to claim a marital interest in the value of the asset. In the event of divorce, marital property will be divided in a “fair and equitable manner,” and there is no set of rules determining who receives what or how much. Many factors can be considered in determining what is “fair and equitable,” including length of the marriage, age and health of the spouses, relative earning contributions of each spouse, the earning potential of each spouse, and even the value of one parent staying home and caring for children.
Whether you live in a community property state (AZ, CA, ID, LA, NV, NM, TX, WA, WI) or an equitable distribution state, the default system may work great for you once you know what the “rules” of marital law are. If you and your partner have discussed it and have agreed that the default reflects the financial structure and values that you want to govern your marriage—meaning you plan on having fully joint finances and, in the event of divorce, you want everything divided down the middle (in community property states) or divided in a way that a judge considers “equitable” (in equitable division states)—then you don’t need to do anything. But if the rules aren’t fully in line with your values, you might move to another state or you haven’t had a serious discussion of marital property law, then “prenup” is a word that should be in your vocabulary.
Myths About Prenups (And Women)
But prenups have been made a dirty word for women, so let’s talk about some myths about premarital agreements and different ways to think about those myths.
A PREMARITAL AGREEMENT MEANS YOU DON’T LOVE YOUR PARTNER.
Let’s just get this one out of the way. Why does talking about money or how you will manage your finances or save or spend mean you don’t love someone? First of all, it means you love yourself enough to have a conversation about expectations and finances. Second, it means that you trust your partner and relationship enough to have that conversation. But beyond all that, it means that you realize that marriage isn’t just your wedding day, and that love is in the everyday, mundane, unglamorous parts of life—like budgets and grocery shopping and retirement planning.
A PREMARITAL AGREEMENT MEANS YOU ARE PLANNING TO GET DIVORCED.
Planning for divorce? I sure hope not! I hope you are dreaming of a happily ever after and that the honeymoon period lasts for years to come. But planning for “just in case”—well, we believe in that, too. Think about it this way; when you drive your car, you don’t plan to have an accident. You just drive. But you have insurance just in case you do have an accident. And if one happens, you are really, really glad you planned for “just in case.” Premarital agreements work just like that. Once you have one, you don’t have to think about it. But it is there just in case you need it. And if you do, well, you will be glad you have it.
A PREMARITAL AGREEMENT MEANS YOU ARE ALL ABOUT MONEY.
Actually, many premarital agreements aren’t about money at all—they can be about your grandmother’s pearls or the house you bought before your wedding or even your (privately held) student loans. Through a premarital agreement, you can address any specific issues that the law of your state doesn’t handle the way you would like, and you can leave all the rest out. In short, premarital agreements aren’t one-size-fits-all like state laws.
A PREMARITAL AGREEMENT ISN’T ROMANTIC.
Okay, we aren’t going to lie—they really aren’t romantic. A lawyer’s office isn’t nearly as fun as trying on wedding dresses or having a dinner with your honey. But, it is romantic to be able to be in love and feel safe enough with your partner to know that you have had a real conversation about finances and planning. The truth is, you probably have already had a conversation about how you share expenses and continuing that conversation shouldn’t be that big of a deal. It sure doesn’t have to bring the romance to a screeching halt.
A PREMARITAL AGREEMENT PITS ME AGAINST MY PARTNER.
This idea assumes that premarital agreements only benefit one person at the expense of the other, and that there couldn’t be a benefit to both of you. I see this in the opposite way. Yes, it is true that you each need to know your rights and obligations under the law and under your premarital agreement—but that doesn’t have to mean the agreement isn’t good or better for both of you or even how you both want things to work. A premarital agreement can (and should) be just that—an agreement—that is tailored to your lives. Both of your lives.
A PREMARITAL AGREEMENT IS FOR RICH PEOPLE AND WE AREN’T RICH.
It is true that we often hear of premarital agreements for the rich and famous Hollywood set—and it’s true that wildly wealthy people often want a prenup. But the wise use of prenups is not limited to the wealthy. First of all, no matter how much money you have (or don’t have), decisions that you make in marriage might not match what your state says should happen if you break up. And when you don’t have four homes and millions of dollars, I would argue your money and what happens to it is even more important.
A PREMARITAL AGREEMENT ISN’T FOR US BECAUSE WE ARE YOUNG AND JUST STARTING OUT.
Hey, that might be true. You might find out what the laws are and decide that they work for you and your partner. You both might have nothing but loads of student loan debt and an old car. But I still believe that you should find out what the “rules” are, so you can decide whether there is anything you might like to be different.
A PREMARITAL AGREEMENT SIMPLY PROTECTS THE WEALTHIER SPOUSE.
Not so! Actually, a premarital agreement that ignores the rights of one soon-to-be spouse is probably not even enforceable. In most states, to have a rock solid prenup, both partners need to be represented by an attorney. Your attorney can help the less wealthy spouse negotiate terms that feel fair and protect her/him from financial devastation should the marriage dissolve. As an example, the premarital agreement can articulate the amount of spousal support (and/or how alimony will be calculated) should the marriage dissolve. It can also provide that the less wealthy spouse earns an “ownership” interest in property that is held by the wealthier spouse as the marriage progresses. Finally, signing of the premarital must be “voluntary” and if there are signs that a partner was “forced” to sign “under duress,” the agreement might be held invalid if ever challenged.
A PREMARITAL AGREEMENT CAN ONLY DEAL WITH FINANCIAL STUFF.
Recently, more and more millennials have asked us to draft Cohabitation Agreements and Premarital Agreements that have terms that make them feel safe opening up to their partner about the good, bad, and the ugly without risking that personal exposure should the relationship go south. A carefully drafted premarital agreement can include terms such as: (1) custody of a pet; and (2) a “gag order”—requiring both partners to refrain from sharing intimate details (think: mental health issues, sex videos, etc.) on social media, with third parties, or with the press.
A PREMARITAL AGREEMENT CAN PUNISH YOUR SPOUSE FOR “BAD BEHAVIOR.”
Like it or not, you can’t include a term in your agreement that awards you property if your spouse cheats on you or uses illegal drugs. If you live in a no-fault divorce state like California, Colorado, or New York, you are not allowed to provide terms in a premarital agreement that award one partner money or property for the other partner’s misconduct. In fact, most states find this type of arrangement “void” as against public policy.
A PREMARITAL AGREEMENT IS BAD FOR WOMEN.
We call straight-up bullshit on this one. Women are amazing, powerful, successful, and smart. Getting married doesn’t change any of that. Whether you are marrying a man or a woman or whether you are (or are planning to be) a badass career woman or a badass stay-at-home mom or something else, you are not defined by your marriage or your partner. No one can make you sign something that is bad for you, right? You are capable of thinking about “what if” without expecting it to happen. And you are capable of planning for “just in case” in a way that protects you. And knowing is the first step toward that. Knowledge is love. Self-love. And we women deserve all the self-love in the world.
No matter where you live or what type or marriage or relationship you are in, knowing and planning what is right for you and your partner is an empowering choice and an exercise in self love and a decision to #lovewise.
Have you considered (or gotten) a Prenup? If not, have you and your partner seriously discussed marital law, and the ways will impact your life?
