As a pre-teen circa 1990, I spent the better part of an afternoon in my dad’s basement study secretly perusing his copy of the 1969 bestseller “Everything You Always Wanted to Know About Sex* (*But Were Afraid to Ask).” Based on the book’s massive popularity, I gather that society-at-large didn’t talk about sex in 1969 the same way we do now, or else that book would not have become a number one best seller in 51 countries.
Fast forward to now, and sex is talked about basically non-stop. Few people these days go into their wedding requiring a thick, yellow tome to clinically explain the basics of lovemaking.
What is far more common, however, is for people to walk down the aisle rather clueless about the basics of money and how it will work in their marriage. Talking about how bills will get paid, what might happen to the money in the event of a divorce or death of one party, and – (Gasp!) whether a well thought out prenuptial agreement is advisable – might be as common today as was a healthy discussion of sexual expectations between an unwed couple before 1969.
And as you probably know, it’s money problems and not sex problems that end most marriages (although the former can often lead to the latter). But fear or ignorance regarding discussing money – and prenups even more so – before the wedding day persists. With that in mind, here is some of what you never knew you wanted to know about prenuptial agreements – and you don’t even have to wait until your parents leave the house to read about it.
Do I Need a Prenuptial Agreement?
Probably weren’t expecting that clear, direct, and notably selfless answer from an attorney, were you?
Literally no one “needs” a prenuptial agreement the way you need water or food or, let’s say, a good haircut (You know who you are, and we’re all thinking it.).
A prenuptial agreement is not a necessity for survival. Plenty of people get married all the time without one and never think twice about it. That said, as a family law mediator and attorney who has seen more than my fair share of nasty, brutish, and not-at-all-short contested divorce cases, where the only people who seem to make out well are the lawyers, I know that plenty of people in those situations deeply wish they’d taken advantage of a prenuptial agreement long after the opportunity to have one has passed.
On the one hand, a prenuptial agreement can give you and your spouse clarity on the financial picture of your partnership, both during the marriage and beyond. Should a divorce happen, prenups help prevent a good deal of treacherous and miserable legal and emotional drudgery. By working together on an agreement, couples who are about to tie the knot can have serious and vital conversations about money, their preferred lifestyle, and roles and responsibilities in the marriage.
On the other hand, a prenuptial agreement can bring a certain, unappreciated business-like tenor to a marriage even before it starts. It is a legal document that essentially says, at the very least, “What’s mine is not necessarily yours.” So, persuading your partner to sign a prenuptial agreement can be a difficult, awkward, and sometimes fatal conversation leading up to a wedding. There’s a reason why Disney princesses and Rom-Com heroines rarely get presented with 32-page prenups right before they give their vows.
“Okay. Enough with the semantics on the meaning of ‘need’. Should I have a prenup or not?”
I know that’s your real question, and I don’t have a simple answer for you. But hopefully the rest of this article will provide helpful guidance for your decision.
Are Prenuptial Agreements Just for Rich Folk?
That’s definitely what I thought growing up. It’s safe to say that this belief came from a very special episode of Diff’rent Strokes (weren’t they all?) where Mr. Drummond’s lawyer absolutely insisted that he persuade his fiance Maggie to sign a prenuptial agreement – specifically one that the lawyer had presented to both Mr. Drummond and Maggie on the day of the wedding. As you can see from this Youtube clip – aptly titled “Maggie is Furious with Mr. Drummond” – the suggestion does not go well and Maggie calls off the wedding.
Because most of my early views on life were rightfully shaped by Diff’rent Strokes, and this episode was almost certainly the first time I’d ever heard of prenuptial agreements, I came away with two lessons here: 1) prenuptial agreements are for rich people; and 2) the love of your life will become furious once you, your lawyer, and/or your florist suggest it to them.
Certainly, many rich people utilize prenuptial agreements, and many people do get at least upset if not furious when the topic of a prenuptial agreement is broached (But honestly, after I explain the exact nature of the prenup terms their partner is pushing for, people are far less upset than you might expect).
I’m not suggesting that everyone should have one, but I am saying that prenups are not just for rich people. First of all, while the agreement is finalized before the marriage, it generally does not have full impact until a divorce or death occurs. Many people have very little when they get married but wealth and assets accumulate over 20 or 30 years . You could be poor at the wedding and rich at the divorce (or vice versa if you don’t get that prenup). But no matter how much money you have, that money represents…well, all of your money. And most people want to protect that, regardless of whether or not they are rich by society’s standards.
So, no, prenuptial agreements are not just for rich people. And, also, have no fear Maggie and Mr. Drummond did indeed get married in the end.
Are Prenuptial Agreements Just for People Who Think They Will Get Divorced?
In my experience, again – no. Of all of the prenuptial agreements I’ve done, no one has ever even suggested that they don’t think their marriage will work. As far as I can tell, the couples really love each other. Although I will say that I’m taken aback at times at how that love jives with some of the more draconian financial provisions I’ve seen proposed by wealthier partners in the marriage. (The response is nearly always that their lawyer thought them up, and they didn’t even know what the provisions meant! Uh, sure, Jan).
In spite of what you might think, the vast majority of people I’ve worked with strongly express a desire and intention for their marriage to last “until death do us part”. At the same time, they are aware that there are no guarantees against divorce. What is a guarantee is that in all 50 states, if one person in the marriage wants a divorce, then that person is going to be legally able to get one. In California, one person just has to say there are “irreconcilable differences”, and they will be able to terminate the marriage, no-questions-asked and no matter how reconcilable the other spouse thinks their differences are.
You can objectively be the “world’s greatest husband” or “world’s greatest wife” year after year for decades on end, but if the other person wakes up one day, and says they want a divorce, then all those years of superlative-worthy spousal performance legally mean nothing with regards to whether you can stay married or not. Not many people want to think about that reality before the marriage even starts, but it is a reality nonetheless. In the same way that people have insurance to protect their finances in the case of the destruction of their house by fire, earthquake or flood without wanting or planning for any natural disaster to occur, people have a prenuptial agreement to protect their finances in the case of a divorce.
And, let’s be brutally honest, a divorce is exponentially more likely to occur to you than a home-destroying fire, earthquake, or flood.
So What’s the Difference Between a Prenuptial Agreement and a Premarital Agreement?
Nothing. Nada. They’re the same thing, and are interchangeable. I prefer “Premarital Agreement” as it relates to the entire marriage, not just the “nuptials” which refer specifically to the wedding.
It often seems to me that clients, especially younger ones, mistakenly think of the prenuptial agreement as just one part of the wedding-planning process, whereas I try to focus them on the inherent, long-term implications of the agreement. In essence, with a prenuptial agreement you are entering into a contract that may not seem to affect your life now but your very-distant-future self (e.g., you in 2055 when your now-fiance decides they’re not feeling it anymore) may face the consequences of.
Even though “Premarital Agreement” relays the significance of the agreement better than “Prenuptial Agreement”, “Prenuptial Agreement ” or “Prenup” is far more commonly used than “Premarital Agreement”, so that’s the term I use here.
What Exactly Do Prenuptial Agreements Do?
Perhaps the biggest misconception I encounter is that, somehow, all prenuptial agreements are the same, and you’ve either got one or you don’t. But Prenuptial Agreements vary according to the needs of each couple.
Before marriage, this is expressed as “I want a prenup.” When someone is getting divorced, this is expressed as “we have a prenup.” For people who want a prenuptial agreement, my next question is “Well, what do you want the agreement to say?” For people who are getting divorced, my next question is “Well, what does the agreement say?” Even quite sophisticated people, and even lawyers themselves, often respond, “I don’t know.”
A prenuptial agreement is simply a contract between two people who are not yet married that includes financial terms about their marriage. What those specific terms are is up to the parties getting married.
Prenuptial agreements serve two general functions, one or both of which might be employed in a prenuptial agreement:
1) changing the law that would otherwise be applicable to a married couple’s assets and financial obligations, specifically with regard to separate and community property (in states that have community property laws) or equitable property distribution laws, and spousal support (aka alimony); and/or
2) the parties agreeing to certain facts applicable to their marriage.
As an example of the first function, a marrying couple might agree in the prenuptial agreement that neither of them can ever receive spousal support (aka alimony) from the other, even though state law might require a judge to order that in a divorce case when there is no agreement. For the second function, a marrying couple might agree that the Stradivarius on display in the living room was a premarital purchase of the soon-to-be wife;therefore, the husband will have no claim to it in a divorce. This does not change the law. It indicates both parties are affirmatively agreeing to the facts in writing and avoiding a possible evidentiary fight later when it might be difficult to prove such facts.
Wait, How Does Separate Property and Community Property Work?
This question is a good reminder that each state has its own family / divorce laws, and you will want to think about what the laws of your own state are as you enter into a prenuptial agreement. You also may get divorced in a completely different state than where you married, and that new state’s laws can take precedence over those of the state where you got married – a note on that below…. That said, there are more commonalities than differences among the various state laws regarding divorce.
I live, practice, and have been divorced in California, which is a “community property” state, as are 8 other states. The remaining 41 states are “equitable distribution” states with respect to division of property.
In a community property state, the earnings from either party during the marriage and the property that is purchased with such earnings are generally “community property”. That means they are owned 50/50 by the parties during the marriage. Upon divorce, regardless of which spouse earned the money and regardless of whose name is on the title of the bank account, house, boat, etc., they are split 50/50. Separate property, however, refers to funds and property earned or acquired before the marriage or received by gift/inheritance, and such property belongs solely to that person. Usually, separate property is not divided up or shared with the other spouse in the event of a divorce.
Equitable distribution laws do not follow community property law principles but often still provide for the distribution of property to spouses regardless of who earned or acquired the funds or property.
This is an extremely short and cosmically over-simplified description of how marital property distribution laws work, but the point is that, in a prenuptial agreement, the parties can decide how property should be treated in a divorce or at death. And prenuptial agreement property terms can override the state law that would otherwise apply to their property. A prenuptial agreement can also include language that indicates that, wherever the divorce occurs (e.g., a different state from that of the marriage), the terms of that prenuptial agreement should apply.
So, What’s the Deal With Alimony and Spousal Support?
Spousal support and alimony mean the same thing. Some states like California use the term “spousal support” to refer to payments from one spouse to another after the marriage for a period of time, which is separate and apart from the distribution of marital property and from child support. But, yes, this is the alimony that you have heard about in the movies or from your shell-shocked uncle at Thanksgiving.
The laws of the various states regarding alimony are much more varied than those regarding property. Here in California, we have what is quite possibly the most generous spousal support regime in the country. If you make a million dollars a year, but your spouse makes two million dollars a year, there is a good chance you can nonetheless be awarded significant spousal support from him or her even though you are financially doing just fine. In other states, particularly in the Bible Belt, you might only get spousal support if you would otherwise be destitute (someday I’ll write a piece about the disconnect between states that have laws claiming to uphold the “sanctity of marriage” while at the same time making it really financially easy to leave your spouse, but that day is not today…).
And at least iIn California, the real kicker in my opinion is the utterly unpredictable nature of how that spousal support amount is reached. I once heard a well-respected judge say that 20 different judges were given the same exact facts regarding a spousal support determination in an exercise, and they came back with 20 different numbers on what, if any, that spousal support should be. As such, it can be very expensive to litigate spousal support, but people have an incentive to do so if they think they will luck out in court (And, yes, I do mean luck. Going to court to litigate your divorce is a lot like going to a casino to grow your retirement, except there are no drinks served, and you have to pay your attorneys many hundreds of dollars an hour for the privilege.)
Many people successfully avoid such unpredictability, delay, and the general crazy-making of litigation by including specific spousal support numbers and durations (or waiving it altogether) in a prenuptial agreement.
Can We Decide Child Custody and Child Support in a Prenuptial Agreement?
You cannot dictate terms about child custody and child support in a prenuptial agreement. Because we’re talking about third parties here – your current or future kids – and third parties that are minors at that, the government retains some authority to step in and make sure that the best interests and needs of said children are being met based on the current circumstances they are in.
One way to illustrate this is, imagine two fresh-faced 28-year-olds getting married who sign a prenuptial agreement indicating that the wife will have sole legal and physical custody over the children in the event of the divorce, and that child support will be capped at $1,000 a month. Now, fast forward 12 years, when they are divorcing and have three kids, but mom is suffering from a serious opioid addiction and is completely incompetent to take care of the children. It would make no sense to honor such a prenuptial agreement. Conversely, imagine that dad strikes it rich, making a million dollars a year, while mom struggles to get by on minimum wage. Similarly it would make no sense to permit dad to pay only $1,000 a month in support in that scenario.
What’s the Best Way to Talk to My Fiance About a Prenuptial Agreement?
Very delicately. If I had a one-size-fits-all script for you, I would give it to you. Your first step is to understand that it’s a touchy topic and that even bringing it up might cause your fiance to think you are greedy, not committed to the marriage, suspicious, unromantic, or all of the above.
Hopefully, you are none of those things, and you can discuss the positive reasons for having a prenuptial agreement in a non-patronizing manner: financial clarity for both parties, like the avoidance of soul-crushing and bank-draining litigation down the road, a clear and transparent accounting of the financial circumstances for both parties before the marriage, etc.
But if you are some of those things, this conversation is just as important and necessary to get those out on the table and have honest and open dialogue before you walk down the aisle.
Or you can just say it was all your parent’s idea. Or your kid’s idea. Both of which frequently seem to be the case.
Ultimately, it can be a tough conversation, no doubt, and I have written more extensively about this topic separately in another article. But if you have a strong desire for the benefits of a prenuptial agreement – which is normal and rational – and you are about to embark on what is possibly the most significant financial move of your life, then the toughness of the conversation should not be a barrier to having it.
I Found this $99 (or Free!) Prenuptial Agreement Online, So What Kind of Idiots Pay a Lawyer for a Prenuptial Agreement?
No one likes free and/or discounted stuff more than me. Even if I win the powerball, I will still shop at Costco and feel a jolt of excitement if I see that the three-pound bag of frozen wontons is 2 bucks off.
Then again, no one dislikes cheap stuff that is ultimately worthless and therefore a waste of time, money, and landfill space more than me. If you have a problem that needs fixing, certainly shop around for the best deal, but make sure what you are buying actually fixes the problem and is durable enough to still work by the time you actually need it..
You see where I’m going with this. Yes, of course the inclination is to download some Mad Libs style fill-in-the-blank PDF rather than pay a professional hundreds of dollars an hour to draft a prenuptial agreement. And that might work fine, particularly if you never get divorced. Or if you’re secretly hoping that the prenuptial agreement actually turns out to be unenforceable and/or otherwise useless.
I have seen quite a few “downloaded” prenuptial agreements in my divorce cases, whether shown to me by a client or asserted by the other party. Not once has one actually: 1) said what the person asserting the agreement thinks it says; and 2) been legally enforceable. In other words, every one that I have seen has been ultimately worthless and inconsequential to the divorce, except that rather than paying an attorney to draft you a useful prenuptial agreement at the time of marriage, you’re paying your attorney at the time of divorce to read it and tell you that you can’t use it in the divorce and you’ve been operating under a false assumption this whole time.
I’m not saying it’s impossible for a DIY prenuptial agreement to do what you want it to do without having to pay any attorney fees. I’m just saying I haven’t seen it in the wild yet. And, because marriage is again, quite possibly the most significant financial action you will ever make, it’s worth spending some of that money you are trying to save on a prenuptial agreement that will do it right.
Seriously, Do We Need a Lawyer for a Prenuptial Agreement?
Along with the misconception that all prenups are the same, another common misconception is implicit in this question. The two of you, the “we” in the question, cannot share a lawyer. Doing so would be an inherent conflict of interest. So, while you might not need “a” lawyer, – you may very well need “two” lawyers, one for you and one for your fiance.
In some cases, a prenuptial agreement will actually not be enforceable without an attorney having represented the party against whom enforcement of the agreement is sought. For example, in California, any provision in a prenuptial agreement relating to spousal support is unenforceable if the person whose rights to support would be impaired was not represented by their own attorney at the time the agreement was signed.
Even if there are no provisions regarding spousal support in the agreement, there could still be a very uphill battle enforcing any of the terms in the agreement in court at the time of divorce if your spouse was not represented by their own legal counsel in the prenuptial agreement. Having both parties represented by counsel counters most arguments against enforceability before they even arise. And if your spouse does not have the funds to pay for a lawyer or does not want to, then you as the person who wants the prenuptial agreement may need to pay for their lawyer in addition to your own. This is fairly common practice for the person who wants the prenuptial agreement to pay for both their lawyer and their finance’s.
Can We Have a Neutral Third Party Negotiate and Draft Our Prenuptial Agreement?
Maybe this wasn’t on your list of questions. But the traditional, old-school procedure of one lawyer working with a client to draft a prenuptial agreement without any involvement of the other party, and then presenting it to the other person and their lawyer is not the only way of getting a prenuptial agreement done.
A marrying couple can meet with a single mediator who can work with the two of them to come up with an agreement that meets their needs then potentially have each of their attorneys review the agreement. Unlike an attorney who will represent only one of the parties, a mediator is a neutral who does not represent either party. With such a dynamic, the parties may be able to speak more freely with one another and benefit from the problem-solving and peacekeeping skills that a mediator brings to the table.
My Fiance’s Lawyer Suggested a Lawyer for Me – Is that a Red Flag?
Maybe, but it’s probably not a bad thing that your fiance’s lawyer recommends a lawyer for you. I have a network of other competent family law attorneys who work on prenuptial agreements and are easy to work with while still zealously representing the interests of their clients. Unfortunately, many family law attorneys can be combative, unresponsive, and frankly not at all good at what they do. Do your own research on any attorneys recommended to you, but, no, this is not inherently a red flag.
For Real, Though, Do I Need a Prenuptial Agreement?
I’m not a mindreader, but if you’ve read all 4,000+ words of this article up to this point, I have a feeling you probably have some significant and well founded concerns about structuring and planning your finances prior to a marriage.
So – like I said at the beginning – not every couple needs a prenup to get married or divorced. However, your interests seem to show that a prenuptial agreement is worth looking into, and you don’t have to be afraid to ask or explore its benefits with your fiance.
About the Author – Jeremy Masys (Mediator, Divorce Coach, Attorney)
Jeremy Masys is a family law mediator, divorce coach, and consulting family law attorney based in Southern California. He has drafted and/or represented parties in dozens of prenuptial agreements, and also serves as a mediator and scribe of prenuptial agreements where parties are represented by their own attorneys or self-represented. If you would like to speak with Jeremy about your California prenuptial agreement issue – whether to mediate a prenuptial agreement, draft an agreement on your behalf, or review an agreement that has been or will be presented to you – contact Jeremy at firstname.lastname@example.org today.