With more than half of marriages in the United States ending in divorce, prenuptial agreements are on the rise. The U.S. ranks thirteenth among countries in divorce rates, so divorce is common worldwide. Yet most people are somewhat reluctant to raise the specter with their partner of signing a prenup.
People marry for companionship, love, to raise a family together, for social status, religious reasons and, yes, for financial stability. People divorce for infidelity, abuse, irreconcilable differences, boredom and a host of other reasons. Death, of course, ends a marriage, as well, which can lead to disputes over a will.
A prenuptial agreement is a contract entered into between two people prior to marriage. It outlines the financial obligations of the parties and the division of assets and debt if the marriage ends. While such agreements typically are used by individuals with large amounts of assets, they are helpful when, for instance, one of the parties has children from a prior relationship or there is an imbalance in assets or debts between the parties. Some couples opt to include lifestyle-specific clauses to require or incentivize certain behavior. Pet custody and inheritance issues can be addressed, as well. The agreements may be amended if circumstances change, such as when a large inheritance is forthcoming or a company is sold, and the parties want to address the distribution of the proceeds. Postnuptial agreements also can be executed.
Among the advantages of entering into prenuptial agreements are protection from a partner’s debts in case of divorce, division of assets and special items in accordance with preferences, compensation for a spouse’s hurtful actions and defining protection for dependents. One can include confidentiality clauses to prevent, for example, social media exposure or tell-all books. Disadvantages include the causation of hurt feelings, familial friction, a sense of doom about a relationship, and power struggles. The most expressed objection to prenups is that they exhibit a lack of faith in the marriage lasting for a lifetime.
“While the divorce rate in California is over 50%, in my twenty years of practice, only 5% of my premarital agreement clients have returned to file for divorce or legal separation,” says Sandy K. Roxas, a family law litigator and mediator in Torrance, California. Having a clear agreement in case of divorce may influence people to avoid it.
Divorces can be emotionally and financially draining. A prenuptial agreement can help streamline the process and save a great deal of time and money. Notably, the use of prenups is on the rise among millennials, perhaps because they have been affected by their own parents’ divorces.
It may be easier to propose a prenup when a person has been married previously. Second and third marriages carry higher rates of divorce. Those previously married may have learned important lessons from those marriages and may be more realistic about the prospect of divorce.
It is advisable not to propose a prenup right before a wedding. Discussions about prenups should be broached as soon as the prospect of marriage is on the table, and definitely not after invitations have been sent or en route to the wedding.
Prenups may be helpful to the spouse who gives up his or her career to raise the couple’s children. The caregiver may secure financial protection in case the marriage does not work out. Some people in this situation negotiate terms such as annual contributions to retirement plans or monthly monetary contributions to a joint account. Likewise, a person who has built a business may not want it to be negatively impacted by a divorce. A prenup can address personal business issues.
Prenups can be challenged in court if, for instance, there is fraud, a failure to disclose all financial information or duress. Having one’s own attorney review the agreement prior to signing it is advisable. In the U.S., enforceability is governed by state law. The majority of states have adopted the Uniform Premarital Agreement Act to create consistent state-to-state enforcement. Child support and custody provisions usually are handled separately from prenuptial agreements during divorce proceedings and can be stricken from prenups if included.
Prenups force couples to have important conversations before they marry and a better understanding of each other’s finances and expectations. Such discussions may reveal incompatibility issues before a marriage takes place. Money issues are a leading cause of divorce, so it is wise to discuss them prior to entering into a legal partnership. Moreover, open communication, even about unpleasant topics, often is indicative of a healthy relationship.
If one chooses not to enter into a prenuptial agreement, at least in the U.S., a court will decide on the division of assets during a divorce. State law will be determinative, and the cost of litigation can be high.
While it can be awkward to discuss prenups with a person you intend to marry, it can save you much grief. And practising openness and honesty can set the stage for transparency throughout the relationship.
Researchers at the University of North Carolina found that describing prenups as insurance, i.e., preparing for the worst even though you do not think you will need it, is a helpful way to broach the issue. Reframing the issue as protective can help cultivate acceptance. And practicing fairness will exhibit a true partnership. Each person must feel empowered to ask for what they want and to feel respected and heard. Protecting each person’s financial interests in an equitable way and preventing future legal battles can be a win for both sides. The goal is to come to a place of mutual understanding and agreement.