Prenuptial agreements are for individuals who have already generated some level of wealth or who have already achieved earning power. Prenuptial agreements identify what each party is coming into a marriage with, what property will be considered separate property, and what will happen if the relationship falls apart.
These agreements are a mix of domestic/family law and contract law. And, there is a great deal of misunderstanding or fake news that is commonly believed to be true about them.
The Fake News
First of all, prenuptial agreements can’t prearrange custody or support for children. Not in a legally binding way of course.
Second, prenuptial agreements, like all contracts, can’t have built in penalties for certain behavior. E.g. if spouse cheats on me, I get $1M more in a divorce; or, if spouse gives birth to a son, spouse will be compensated $500k more per year in the event of divorce until son becomes an adult.
And let me put this in plain English… yes, you can put some of this non-sense in the prenuptial agreement, but it isn’t enforceable.
The Hard Part
Negotiating. It is really uncomfortable for people to rationally discuss what happens if a relationship fails. And, unfortunately, there is a lot of accepted toxicity around the discussion. Petulance, stonewalling, and refusing to engage in meaningful dialogue is chief among them. And that’s just from the clients! Attorneys, who are their own separate animal, can make the discussion even worse!
Ways into the discussion point out that you are already entering a marriage contract. To make sure the marriage does not fail, you need to discuss all aspects of how the relationship will work so everyone’s expectations can be met.
As a society, we need to swing back to reality. This notion of there is nothing less romantic than discussion a prenuptial agreement before marriage. Yes, that may be true, but there is nothing more realistic. Marriage isn’t a fantasy. It is hard. It requires work. If your partner isn’t willing to put in the mental work around this conversation, it can be telling that he or she won’t put in any work or compromise later. Which is totally fine, at least you know that going into it.
The Important Thing
If you are a business owner, have retirement assets, or own your home, you should sit down and talk to an attorney who works in the domestic/family law arena to make sure your assets remain your assets in the event your marriage does not work out. Even if you choose to not get a prenuptial agreement, it is important to make an informed decision.
If you’re looking for a conversational resource, the podcast Girls Gotta Eat (Episode 219) had Laura Wasser on to discuss this. Wasser is an attorney to the stars and is a fantastic resource on this topic.