Prenuptial Agreements: Preparation for Failure?

I was sitting in my office one night last week working on a client’s prenuptial agreement.  We had put together a draft and had provided it to the other side to review.  They had, in turn, responded with objections and proposals that would improve the future wife’s position in the event of a divorce.  I found myself wondering (as I often do when I’m sitting in my office too late at night), “what would my mom and dad have thought of the concept of a prenuptial agreement?” Negotiating the terms of the “potential” divorce before they were even married?

Not to over simplify the matter, but prenuptial agreements are contracts between a prospective husband and wife that are intended to dictate how assets and debts will be addressed in the event of a divorce.  They may cover other issues as well – whether spousal support will be pursued, whether attorney fees and costs for the divorce will be paid by one party or shared, how the interim period of the divorce will be handled, whether one party will retain the marital home, even custody related issues (though these are subject to much stricter review by the court).  In essence, they are intended to take the decision-making role from the judge and place it in the hands of the parties to the . . . divorce.  And more and more people are entering into such agreements before they are married.  So the question is: “if you marry for love, is a prenuptial agreement appropriate?” 

Over the next couple weeks I’m going to be posting several blogs explaining why the answer is often “yes.”  I understand this may fly in the face of some strongly held beliefs regarding marriage, but the fact is, everyone’s material circumstances are different.  What works for one person or couple may be completely outside of consideration for another.  As a simple example, while one couple may bring millions of dollars in assets with lots of other business interests to a second or third marriage, the next couple at the chapel may bring nothing but their enduring commitment to one another and a toothbrush.  Different circumstances, different needs.

Tune in for the next post when I discuss some of the factual circumstances that might be more appropriate for entering into a prenuptial agreement.