- Considering a prenuptial agreement should be a standard part of preparing for a new marriage.
- A prenup requires candid financial disclosure, which lays the groundwork for ongoing transparency.
- A prenup can serve as an “operating agreement” to help guide a couple through any life changes.
It is wedding season. As people of all ages enter into marriages, they are entering into prenuptial agreements as part of the process. In her recent article in The Atlantic, Olga Khazan remarks, in a good-natured teasing, on her lawyer’s use of the word “notwithstanding” in the negotiation of her prenuptial agreement with her soon-to-be spouse. It was not the knock on the word “notwithstanding” that got my attention; it was Ms. Khazan’s casual acknowledgement that entering into a prenuptial agreement was part of the regular course of action before her wedding.
Retaining a lawyer and negotiating a prenuptial agreement with your soon-to-be betrothed is not exactly like hiring a florist, but treating it as one step of many to a legal marriage is, I believe, a genuinely positive way to build a stronger marriage.
A positive prenuptial agreement process, during which we discuss all the potential horrors of a divorce or a premature death, requires unflinching financial transparency and radical conversations about how you each value money, work, and family. If done thoughtfully, the conversations you have with your intended spouse and your attorney to reach a final prenuptial agreement will set the stage to support all future conversations about money, work, and family.
First, mutual financial disclosure is required in most jurisdictions in the United States. You and your intended spouse are forced to disclose your incomes, your debts (including liabilities like student loans or IRS debt), your assets (including those with nebulous values, such as private business interests or trusts established for your benefit), and financial documents, such as your recently filed tax returns. In some cases, this aspect alone can be quite impactful because not many of us are ever forced to take such detailed stock of our own financial health, let alone willingly turn it all over to a loved one for him or her to dissect it … with the help of an attorney.
If you can carry the vulnerability required for this step into your marriage and remember to maintain financial honesty and transparency with your spouse—no matter your debt or level of wealth—you are already a step ahead of many other married couples who limit access to financial information from one another and may even file joint tax returns without both parties reviewing them with their accountant. There are many articles about how fiscal secrecy and manipulation are factors in divorce, but here, I am reminded of the recent reader letter submitted to the New York Times Magazine's "The Ethicist" column, titled, “I’ve hidden my trust fund for 15 years. Do I finally tell my spouse?” Given that financial deception can be a death knell for even a flourishing healthy marriage, this person’s sustained lie to their spouse will likely not end well. However, if you start your marriage with candid financial disclosure, you know what it looks and feels like to ask for it again.
Second, with the guidance of an experienced attorney (one who also litigates divorces is encouraged, as we in family law see the pitfalls of poorly-drafted prenuptial agreements, and, notwithstanding our jobs, many of us like happy endings), you can discuss how the laws of your local jurisdiction apply to your marriage and which laws you wish to change and which you wish to follow.
In most places in the United States, a marriage is a business partnership. It may also be a romantic, family- and friend-supported, once in a lifetime celebration, but at the heart of it all, you are forming a family business with your spouse. Your incorporation document is your marriage license, and your prenuptial agreement is your operating agreement.
Many lawyers recommend that clients put the executed prenuptial agreement in a drawer and never think about it again. I do not subscribe to that theory. Using your prenup as your operating agreement means that when you experience life changes—bumps in the road, opportunities for new ventures, and so on—you should review the prenuptial agreement with your spouse, no matter how difficult it may seem at that moment.
None of us have crystal balls, which is likely why marriage is so enticing when we find someone with whom we want to spend our lives. It is our unpredictable futures that make it so important to have and then review a prenuptial agreement whenever we’re at a time of a change in the marriage. Because I promise, you will not remember what the agreement says and neither will your spouse. For example:
- What does it say about alimony (spousal support) if I stop working to care for our children or my aging parent?
- What does it say about the house I owned before the marriage - that we just sold?
- What does it say about the business I started?
- What does it say about our inheritances?
- What about our estate plan?
Reviewing the agreement with your spouse will be imperative. These are all relevant questions you once discussed, before you said, “I do,” which means your marriage should be able to withstand you discussing them again when you and your spouse have to make decisions with financial implications. If you can force yourself and your spouse to find the time during your marriage to implement the same transparency, vulnerability, and radical conversations required to get you down the aisle with a prenuptial agreement, you will be setting the course for each time you’re faced with a decision. The result will be a stronger and healthier marriage.