In recent Forbes article, the author accurately summarizes my position on prenuptial agreements:
For many young people, a prenuptial could be the first meaningful legal document they will sign – a legal document that describes, in part, how assets will be divided should the marriage eventually fail. While the romantic in me subscribes to the author’s point of view, my professional and life experiences strongly dictate otherwise.
As a divorce lawyer, I see good people at their worst. I see relationships that, like yours, started with high hopes and, unlike yours (so far), ended in pain and heartbreak. I genuinely believe that none of the people who have ended up in my office meant to screw up their marriages, just like you have no intention of screwing up yours.
Right now is the perfect time for you and your fiancé to talk about divorce, because right now, at least in theory, you have more affection for each other than you do for anybody else on the planet, and you’re the most excited about your love you’ll ever be. Of course, ideally, with time your love will deepen and mature. Still, if you’re planning your trip down the aisle, you’ve got two amazing things working for you in abundance right now: affection and optimism.
Young couples almost never contemplate the need for a prenuptial agreement.
When I discuss the need for a prenuptial agreement with clients entering a second or later marriage, especially when there are children from a prior marriage, there is general agreement that, at a minimum, such an agreement should be considered.
What should be discussed:
1. Talk about why you would get divorced.
Talking about why you might consider divorcing someone is a direct path to identifying and sharing with your fiancé your expectations for marriage and what you understand his or her expectations to be. What are the non-negotiable issues for you (fidelity, financial transparency)? What are the things in your marriage you suspect you would be willing to see change over the years (amount of time spent with friends, career focus, frequency of sex)? Talking about what you think are “good” and “bad” reasons to get divorced is a great opportunity to learn about your fiancé’s goals for the marriage and how realistic his or her perspective is on how your relationship should and shouldn’t change. It never hurts to hear yourself say — out loud, to your fiancé — what you think he or she should already understand about you.
2. Talk about how you would try to prevent divorce.
Prenuptial agreements are simply legal documents, signed before the wedding, which address what happens to property in case in divorce.
What value does the space you share have to each of you? Would one of you move out of your shared home and the other keep it, or would you both want a “fresh start” someplace new? How much financial help might you need from each other to begin new chapters in your lives, post-separation? What changes in your professional life would you need to make? Which of each other’s family members do you think would remain close to both of you and which would pick a “side”? If you plan to have kids, how would you want to arrange their parenting? These are difficult questions to think about, but the underlying issues they address will spark a dialogue about your future that will benefit your relationship, whether you stay together for life or ultimately face the challenges of separation.
Getting a prenup forces couples to confront important money conversations early, because you’re discussing future equitable split of wealth related to investments and savings, possible alimony payments and debt – which could include student loans, especially if you co-sign or continue taking out student loans after saying “I do.” “A prenup eliminates the opportunity for a peaceful divorce to turn into a bloodbath,” says Matthew Zubricki, a 28-year-old CPA based in Chicago, who is currently drawing up a prenup with his fiancé. “It seems insane that anyone would sign into a partnership where one partner could hypothetically leave at any time with the incentive of claiming half of the partnership’s joint assets.”
Prenups aren’t solely used to outline the splitting of assets, wealth and debt responsibilities after a conscious uncoupling. You may be able to dictate certain terms of life after divorce with lifestyle clauses.
Such clauses can range from relatively normal (e.g. who gets custody of the dog) to the intense (e.g. a lump sum payment if someone gets caught cheating) to the bizarre and perhaps not totally legal (e.g. how many times of week you are required to copulate). Before you dismiss these clauses, consider the three below.
You can consider having a “gag order” in your prenup. This might sound extreme if you’re just two normal people with no fame or brand to protect. But if you believe you may have an established brand, business or have some other need to protect your reputation, then it can’t hurt to have one in your prenup to prevent a scorned ex from dishing your dirt.
Another option is a goodwill clause, which similar to a gag order, prevents your ex from trashing you publicly and vice versa.
Increasingly common is what’s called a social media clause. These typically state that you and your ex can’t be sharing embarrassing photos or make disparaging remarks about each other on social media. Violating this clause could lead to a fine — it’s been reported it could cost someone $50,000 for a violation.
One thing to keep in mind is that sometimes having too many frivolous lifestyle clauses can be cause for a judge to invalidate a prenup during divorce proceedings as some of the clauses may not be considered legally enforceable or in opposition to state law and therefore will invalidate your contract.
I also recommend interrorum clauses which may punish financially a party if they commit adultery or domestic violence.