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Prenups Are So Misunderstood, Not Even Attorneys Want Them

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?

Photo by: Moodeous Photography

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