Divorce Wisdom: The Pros and Cons of Signing a Prenuptial Agreement

It’s June – the most popular month for a couple to get married. As a divorce attorney, the wedding season typically brings in clients in need of a prenuptial agreement. But I can tell you from experience, prenuptial agreements are not for everyone. Therefore, this blog posting will explore the pros and cons of prenuptial agreements based upon my personal knowledge of drafting them, enforcing them and having them set aside. However, before I begin my list, a basis understanding of what a prenuptial agreement actually is needs to be discussed.

A prenuptial agreement (sometimes referred to as an antenuptial agreement or simply a prenup) is a contract between two people that becomes valid upon the marriage of the couple. Basically, two people can enter into any type of agreement that they want, so long as the terms of the contract are legal. For instance, I have had couples include mandatory couples’ counseling as one of their prenup conditions. I had another bride include a financial penalty provision in the event the marriage ended due to her groom’s infidelity. Some couples include a sunset clause in their contract. A sunset clause invalidates the prenuptial agreement in part or in total if the marriage lasts over a certain period of time. You get the idea, so let us explore whether entering into a prenup is right for you:

PRENUPTIAL AGREEMENT PROS:

– In order for a prenuptial agreement to be valid, each couple must disclose all of their assets and liabilities. Requiring both spouses to come clean about their finances is always a good idea before walking down the aisle. As a side note, each party should retain their own attorney to represent him or her.

– If you have a child(ren) from a previous relationship, you can protect your child’s rights to a portion of your estate, as well as to his/her inheritance through a prenup. Typically, a prenuptial agreement that protects children is done in conjunction with trust and estate planning. (I actually drafted a prenuptial agreement recently for a man who had a provision in his divorce settlement from his prior spouse that required him to leave a certain percentage of his estate to his children. His settlement further stated that any future prenuptial agreement that violated his divorce agreement would invalidate the prenup.)

– We have all heard divorce horror stories. A prenuptial agreement has the potential to take away the fear of a bad breakup by allowing the couple to decide, in advance, how they would be comfortable dividing up their assets if the marriage does not work out. Some believe that taking the mystery out of a potential divorce will enable the couple to focus on the marriage rather than a potential breakup.

– A prenup can protect the assets that you accumulated prior to the marriage, as well as deal with how to handle certain assets that you obtain during the marriage. If you are older or have been married before, you may feel you need the security of a prenuptial agreement before trying marriage again.

– In the event of divorce, a well drafted prenuptial agreement may save you and your spouse a great deal of money, if the division of your assets and debts is well defined by the agreement.

PRENUPTIAL AGREEMENT CONS:

– Prenuptial agreements take the romance out of the engagement. If only one spouse wants the agreement, it could lead to quite a bit of premarital discord. Over the years, I have worked for several brides and grooms that found the business of a marriage contract so distasteful that they called the wedding off as a result of their fiancé’s insistence that they sign a prenup. Some engaged people are of the attitude, “if you are going to marry me, you should trust me without a pre-wedding contract.”

– Even if you enter into a prenuptial agreement, the court may not enforce it in the event of divorce. In order to successfully challenge the validity of a prenuptial agreement, the challenger must demonstrate:

(1) The agreement was obtained through fraud, duress or mistake, or misrepresentation or non-disclosure of material facts;
(2) The agreement was unconscionable; or
(3) So much has changed in the parties’ lives since the agreement was entered into that it would be unreasonable to enforce its terms.

– A prenuptial agreement, if challenged during a divorce action, can prove expensive, which may defeat the reason for obtaining a prenup in the first place.

MY PERSONAL THOUGHTS ON PRENUPTIAL AGREEMENTS:

If you have children from a prior relationship, I think a prenuptial agreement may be a good idea to protect your children. Similarly, if you are involved in a family business, you may want to protect your extended family by entering into a prenuptial agreement. With the exception of these two (2) examples, I believe the decision is quite personal and depends upon your individual facts and circumstances.

For all of you that are about to say “I do”, I wish you the best of luck and a long and successful marriage.