Wedding vows are romantic, but prenuptial agreements are not.
Prenups are, however, a good idea in many cases, considering an estimated 40% to 50% of first marriages end in divorce and even more frequently for second or third marriages, and prenups are about more than just shielding one spouse’s wealth.
Broaching the topic with a fiance could also come as a surprise, and even be hurtful or feel like a lack of trust to an unsuspecting soon-to-be spouse. Legal advisers said the best way to avoid emotional distress is to talk about prenuptial agreements well ahead of time, perhaps even before becoming officially engaged.
“Really, the timeliness of bringing that up and having that conversation as early as possible is the way to take out the sting that one party may feel,” said Monica Garcia Harms, partner at Rockville, Maryland-based law firm Stein Sperling, and chair of the firm’s Family Law Group.
In fact, waiting too long to execute a prenuptial agreement could actually backfire, should the marriage end in separation, and divorce.
“If you hand someone a prenuptial the day before a wedding and ask them to sign it, you’ve really compromised the enforceability of it. Down the road, if you need to enforce it, they may say they were under duress, they didn’t have time to review it, they didn’t have time to get their own counsel,” Harms said.
There are many reasons for prenuptial agreements that are not selfish, but practical.
If it’s the second (or third or fourth) marriage for one or both partners, it can clarify who is responsible for existing alimony payments and child support payments. A prenuptial can also earmark marital and nonmarital assets for children from previous marriages.
They can clearly define inheritances upon a party’s death, and minimize conflict between children and step parents.
And they aren’t always about wealth. They can also be about debt.
“For example, one spouse has a great deal of student loan debt, so it is important to be able to understand that ‘OK, we are a team now, we’re trying to pay these things off.’ But down the road, if you’re coming into this marriage with a bunch of debt and leaving the marriage without that debt, then we need to take that into consideration,” Harms said.
Both fiances should retain their own lawyer to represent their interests. Harms highly recommends the prenuptial lawyer be an experienced family law attorney.
Divorce rates in the U.S. have been declining, and one potential bright spot for a spouse who is worried their marriage is heading for divorce. According to the Census Bureau, 6% of couples who divorce eventually get remarried.
