Get A Pre-Nup Before He Leaves You!
WHEN I WAS ENGAGED, my fiance brought up the idea of a prenuptial agreement. My shocked reaction was, I imagine, common: How could he be thinking of the end when we were just beginning? Technically; a prenuptial agreement is a contract that states how property and debt will be divided should a couple divorce and how much monetary support each spouse can expect from the other. Emotionally; a prenup is a powder keg that can blow your carefully planned wedding to bits if approached with the slightest indelicacy.
My fiance’s actual words were “Maybe we should talk about a prenup?” What rang in my head was, Steven doesn’t love me! When I began to discuss this phenomenon with my friends, I was surprised to find that prenups are a subject seemingly more taboo than the intimacies of one’s sex life. But once the women I spoke with opened up, many revealed pretty old-fashioned ideas. “Even to admit you have a prenup feels like saying there’s a fatal flaw in the relationship,” says Genevieve, a former diamond-company PR executive whose husband owns a restaurant. “People judge your marriage as less romantic or stable.” Jillian, who hails from old Colorado money (and who married her husband when his company was having trouble), wondered whether prenups are a “new money” trend. “No one in my family has ever had a prenup,” she says. My British friend Lucy found the very idea appalling: “Prenups are disgusting. They are completely contradictory to the marriage vows.” Why a man pulls away sometimes is not the easiest thing in the world to deal with.
It turns out that these sentiments are widespread, though their accuracy is not always supported by the experts. “We have this fantasy that economic relations contaminate and corrupt intimate relations and vice versa,” says Viviana A. Zelizer, a sociology professor at Princeton University and the author of The Purchase of Intimacy. “But the truth is, we constantly mix both and always have.” When we became engaged, Steven was an established architect who earned more money than I did. “What if you become the one earning all the money?” he asked. “Don’t you want to be protected?” I told him that anything we had going into the marriage should remain our own; anything we made during the marriage should be split. But what I didn’t say was that he was right. If I were earning millions of dollars, I would want to protect myself too. Even though we are both from financially comfortable families, I had a prenuptial double standard.
Mostly; I was afraid to say yes to a prenup out of fear that it never favors those who earn less than their spouses-to-be. My presumption was wrong. “Usually it’s best for the non[or lower-] earning spouse to negotiate money up front, when their intended is more generous,” says Stacy D. Phillips, a Los Angeles attorney and family-law specialist. “People can become unrecognizable during divorce proceedings. The biggest mistake women make is thinking that a husband will take care of them. I knew a stay-at-home mom who was married for twenty years and got little beyond spousal support.”
Before popping the P-question with your partner, understand the pros and cons of this contract. Generally, experts agree on the following:
PRENUPS MAKE THE MOST SENSE … when you’re entering a second marriage and want to ensure that children from the first marriage are financially protected. They are also more common among people who have many assets or many debts; who will be receiving a large gift, such as an inheritance; who own a business; who will be supporting their spouse through college or other advanced education; who have elderly parents or other loved ones to take care of; whose business income is about to increase; who are pursuing a license or degree in a potentially lucrative profession; or who are marrying someone much less wealthy.
STANDARD PRENUP REQUIREMENTS STATE … that each party must completely disclose their assets, sources of income, and liability; that each party must be represented by separate and independent legal counsel; and that the agreement must not impoverish anyone. There also must be a “lack of duress” when the contract is drawn up (meaning, your fiance can’t slip you the papers right before you walk down the aisle).
PRENUPS CAN … reduce divorce fees and prevent having an unpredictable judge make major life decisions for you later on. They also require that a couple communicate honestly about what they expect financially.
PRENUPS CANNOT … restrict child support, visitation rights or custody. A judge is also likely to throw out such nonfinancial matters as a no-weight-gain clause and who is responsible for walking the dog.
Even understanding the intricacies of prenups, however, doesn’t make bringing up the subject less daunting. “Discuss it well in advance of sending out the wedding invitations, preferably in a neutral place,” says Arlene Dubin, a matrimonial attorney and the author of Prenups for Lovers. “A one-sided agreement shouldn’t just be plopped down by the wealthier person as an ultimatum.”
Florence Kaslow, a Palm Beach Gardens psychologist, recommends that couples begin a prenup conversation with a general discussion about how they picture their life together. “You need to talk about what you want from the marriage, what you’re willing to give emotionally, spiritually, financially and physically,” he says. “All this leads to a better financial agreement.”
For Ashley, an Emmy-winning journalist married to a CEO of a computer company, the prenup talk was tough. “Finances weren’t a taboo topic between us,” she says, “but when Adam mentioned a prenup, I started crying and said no, even though I had more assets. Talking about a breakup killed the fantasy of marriage.” Ultimately the couple opted to go with the solution many newlyweds are adopting: a postnuptial agreement, which clarifies a couple’s financial arrangements both during a marriage and in the event of a divorce.
“A year after our wedding, I’m leaving my career to start our family, and I don’t want to have to ask Adam for money every week,” says Ashley. “We’re hiring a lawyer to negotiate a postnup. Now that the high emotions of being engaged have passed, I can think more rationally. I’m less defensive because Adam married me without the prenup.”
While some couples find it unromantic to think about the possibility of divorce while in the midst of vowing to commit forever, many also fear that a prenup is a self-fulfilling prophecy. There are, however, no statistics on whether these contracts are more or less likely to lead to divorce. “My hunch would be less,” says Zelizer.
In an argument between the head and the heart, it’s hard to foresee which will win. My now ex-husband and I didn’t end up getting a prenup, but when we divorced, there wasn’t a lot of financial haggling. I’d like to think that when I remarry, I’ll be able to trust in the power of love and be assured of forever. Would saying no to a prenup make me a fool in love or just in love? I don’t know, but I suppose it’s a gamble I’m willing to take.
A PRENUP PRIMER Prenuptial agreements have been around for hundreds of years but were rare in the United States until the 1980s. Before the Married Women’s Property Act of 1848, everything a woman owned or inherited became her husband’s property, so if he divorced her (or died), she was left with nothing. Most judges deemed prenups invalid because of the belief that a couple became one through marriage (that “one” being the husband). In some states this “unity of marriage” idea persisted through the 1950s. The 1983 Uniform Premarital Agreement Act expedited change, and the court system moved away from outmoded mandates. Several factors have made prenups more popular: divorces are now more socially acceptable (as are second marriages); people are getting married later in life, when they’ve acquired more assets; and couples realize that up to 50 percent of marriages fall apart. Current trends include postnuptial and cohabitation agreements, as well as Domestic Asset Protection Trusts, which allow individuals to put assets into a trust that does not have to be disclosed in the prenup. Many states also have community-property or equitable-distribution laws to divvy up assets equally in the event of a divorce.