They say that January is Divorce Month (we get more inquiries after New Years!) but it also seems to be Prenup Month. I started working on two prenuptial agreements this week – one as a mediation and one as a collaborative case. I also read an article in the New Yorker, Prenups Aren’t Just for the Rich Anymore.
I’m curious about your experiences with prenups – do you have one or know anyone who does? Or who should have had one? If you’re a divorce professional, do you have any suggestions about how to make the process go more smoothly?
Here are a few observations of mine (in no particular order):
· Prenups still have a “yuck” factor – we kind of hold our noses when we think about them because we hear stories of coercion and abuse. But they can also be useful.
· All marriages last either ‘until death [or divorce] do us part.’ The prenup is a way of planning for the parting part.
· The crux of the prenup is to define which property is separate and which is marital. Each state has somewhat different laws about this – so having a prenup is a way of making up your own rules and not being subject to the laws of the state you are living in at the end of your marriage.
· No one wants to think about their marriage ending. It is especially mind-boggling when you are making so many plans to spend the rest of your lives together.
· Prenups can be especially tricky for those of us who have a fear of commitment!
· Most of the time, one person is initiating the idea of a prenup because they have assets they want to hold onto in case of divorce. Sometimes (as the New Yorker article tells us) the point is actually to protect their fiancé from their debt.
· Young people and older people have different reasons for wanting prenups. Older people often want to protect their kids’ inheritance (e.g. in a second marriage) or to protect their retirement assets. Younger people are often told by their families that they need a prenup to protect their current or future inheritance.
· Couples learn a lot about each other in the prenup process. They may discover that they have very different views about what marriage means (is it really an economic partnership?). And/or that they have diverging views about money – (are you a saver or a spender?)
· Everyone wants what is fair. But my idea of what is fair might be very different from your idea of what is fair.
· Young couples may be examining their parents’ views about finances – and what they’ve been told – for the first time.
· Using mediation or collaborative law in the prenup process allows the couple to talk about topics they may otherwise avoid and to have difficult conversations.
· The easy part of prenup mediation is that the parties have good communication and are motivated to come to agreement. The hard part about it is that you don’t know what is going to happen and you can’t plan for every eventuality. (And see the mind-boggling part above)
· The prenup process can get to be very adversarial. That seems like a tough way to start a marriage.
· The truth is that we each come to our marriages/partnerships with different strengths and resources. Prenups force people to look at these squarely. That can be very frightening.
· If done lovingly, prenups can help both sides feel clearer and safer.