12th Aug 2014
You want me to start off this marriage with an agreement about us breaking up? That’s crazy! Who would ever think of that? Actually, it has only been in the past 100 years or so that couples have entered marriage without any thought of what might happen upon death or divorce. Dowry contracts and Jewish Ketubah at one time served at least some of the same functions as a pre-nuptial agreement. It was not uncommon among Egyptian royalty to use pre-martial agreements. A modern pre-nuptial agreement is more than just a break-up document; it can be part of the discussion of what each partner wants in the marriage. The uses are as varied as the reasons for getting married.
More and more we are doing these agreements in non-traditional situations. The stereotypical scenario is when one partner has a significant amount of assets to protect (or expects a large inheritance) and the other partner has very little or no assets being brought into the marriage. This is by far not the only use for a pre-marital agreement. When couples have grown children and are entering into marriage after divorce or death of a spouse, they want to be sure their children are protected. A pre-marital agreement can help with that. Sometimes, one partner had debt issues in the past and a pre-marital agreement can be used to help isolate creditors. Maybe one of the partners has a special needs child and a pre-marital agreement can help keep the new spouse’s assets from being countable resources against benefits the child is receiving. You and your partner need to think of the agreement as a safety-net, not a break-up license.
Couples enter into these agreements and have successful marriages, but only when both partners participate in the discussion and the agreement is not being forced by on them by outside influences (AHEM parents). In addition to division of assets, a pre-nuptial agreement can recite, even if not enforceable in a legal sense, the care and respect each party wants and expects from the other. Putting these front and center at the beginning of the marriage can help ease the discussion about the agreement itself. Of course, you can always tell your intended that you are treating them like an Egyptian prince or princess if that gets the discussion going.
This is important; do not start the process the week of the wedding. Let me repeat that again, do not start on this the week of the wedding. You won’t have time for it, your partner has no time for it, and it gives your partner a ready-made excuse to try to back out of the agreement. They had no time, they were forced into it with the wedding so close … you get the idea. This is something that should be worked out well in advance and shouldn’t even be a thought that close to your wedding. Use this as a time to frankly discuss your concerns together and develop a plan fair to both parties that also respects needs of each such as protection of a family business or assets for adult children.