Should I Have a Prenup?

Should I Have a Prenup?

Written by: Rob Franklin

Growing up, watching entertainment from Intolerable Cruelty to Sex and the City, my understanding was that prenups (or “pre-nuptial agreements”) were a way for the rich to protect their wealth from greedy, manipulative partners. On screen, the very mention of them seemed radioactive, an admission that one partner (always the wealthier one and generally the man) believed their spouse to be capable of such manipulation, which seemed to guarantee the very divorce they were trying to protect themselves from.

It wasn’t until I was an adult that I heard of couples with more modest means entering these agreements. For them, I learned, prenups were agreements with a mutual benefit, rather than a punitive action taken by one party against the other.

Today, many couples choose to enter pre-nuptial agreements and for a variety of reasons — as without them, partners must defer to the laws of the state in the event of death or divorce. If approached with intention, drafting one can be an opportunity to have frank conversations about financial realities that will remain relevant for the duration of a marriage.

Reasons to Enter a Prenup

Establishing Rights and Responsibilities to Assets, Debts, and Inheritance

A prenup can be used to establish a clear division of rights and responsibilities over a couple's finances. This can include the division of assets, such as property and cash, as well as debts, such as student loans or credit card balances. It can also include the possibility (or certainty) of future assets, including inheritance from one’s relatives or any sizable gifts. By establishing these terms in a legally-binding agreement, couples can avoid potential disputes over finances in the event of a separation or divorce.

Protecting Children from Previous Relationships

A prenup can also be used to protect the rights of children from previous relationships. In the absence of a prenup, the assets of a deceased spouse may automatically be passed on to their current spouse, potentially leaving their children from a previous relationship with nothing. By establishing the terms for the distribution of assets in a prenup, couples can ensure that their children are provided for in the event of one partner's death.

Honoring Outcomes of Jointly-Made Decisions

In a long-term relationship, it is common for one partner to make significant sacrifices in support of the other partner or the relationship as a whole. These sacrifices can include leaving the workforce to raise children, moving to a new city or country, or supporting a partner through graduate school. While these decisions may have symbolic value, they can also have significant financial consequences.

A prenup can help to protect the partner who has made these sacrifices by establishing financial terms that address the potential impact of these decisions on their future. For example, a partner who leaves the workforce to raise children may have difficulty re-entering the job market in the event of a divorce. By including terms in a prenup that address this possibility, couples can ensure that the sacrifices made by one partner are recognized and valued.

If One or Both Members of a Couple Own a Business

Given businesses can themselves be seen as assets, entrepreneurs often enter prenups that stipulate they alone will retain ownership in the event of a divorce. Some may even agree to maintain individual ownership, while sharing profits earned by these businesses.

Planning Ahead, in the Event of Divorce

Okay, yes, it’s a bummer. It may feel a bit defeatist to begin planning for a divorce before you’re even married, but the reality is, no matter how much two partners love one another, it may happen. And in the event that it does, heightened emotions may result in more antagonism than is … strictly necessary. We’ve all seen the movies and tabloid stories.

Speaking of which: for people who have public platforms (entrepreneurs, entertainers, etc.), prenups may also include terms that disincentivize speaking ill of one another publicly, mitigating a media spectacle that could be damaging to both parties.

The long and short of it is that having these conversations and negotiations upfront can pay-off in the long term. Sure, it’s not the most romantic subject, but opening up the conversation can encourage both partners to articulate what they expect from a marriage. After all, it is a contract!

What Makes a “Good” Prenup?

Transparency

One of the key requirements for a prenup to be considered valid is transparency. This means that each partner must fully disclose their financial situation, including their assets and debts. Without this level of transparency, a prenup may be considered invalid by the state.

Reasonable Terms

In addition to transparency, prenups must also include reasonable terms. This means that the terms of the agreement must be fair and equitable, and cannot be overly restrictive or onerous. For example, some states may not allow couples to waive their right to alimony, or may subject waivers to a high level of scrutiny.

Flexibility

It's important to note that a prenup is a contract that is entered into at a specific point in time. However, people's financial situations can change over the course of their marriage. As a result, it's important for prenups to be flexible and able to adapt to changing circumstances. This may mean that the prenup needs to be reviewed and updated over time.

Mutual respect

Above all, a "good" prenup should be based on mutual respect. This means that both partners should be honest and upfront about their financial situation, and should enter into the agreement with a desire to reach a fair and equitable outcome. It's also important that each partner consults with their own independent legal counsel before signing the prenup.

What's Next If You Want to Enter into a Prenup?

If after discussion, you and your spouse-to-be decide to enter into a prenuptial agreement, there are several steps you should follow to ensure that the process goes smoothly.

Retain Your Own Lawyers

It's important for each partner to retain their own lawyer to review and advise them on the prenup. It's not uncommon for the wealthier partner to pay for both lawyers, as this can help to ensure that the agreement is considered fair and even-handed by the courts. It's important to choose lawyers who are of a similar standing (read: price) to ensure that both parties are represented equally.

Draft a Prenup Agreement

Before meeting with your lawyers, it can be helpful to work together to draft a prenup agreement. This can help to ensure that both parties are clear on their goals and expectations for the agreement. Books like "Prenuptial Agreements" by Katherine Stoner can provide helpful context, examples, and worksheets to guide you through the drafting process.

Have an Honest Conversation

Before you start drafting your prenup, it's important to have an honest conversation with your partner. This can help to establish what each of you hopes to gain from the agreement, and can help you to set norms for how you will communicate and negotiate with each other. By being intentional and respectful in these conversations, you can help to establish a strong foundation that will continue into your marriage.

How to Approach the Prenup Conversation

We get it. It can be nerve-wracking to even raise the topic, given all of the cultural baggage it carries. That said, this is just one of many difficult conversations a couple will have over the course of a successful marriage. It forces an openness about one of our cultural taboos, money, and can be a crucial time to flex your ability for effective, respectful communication.

While you, of course, know your partner better than we do, you should prioritize several things in broaching the topic of entering a prenup.

  1. Clarify that you intend the prenup only as a precaution, a bridge you hope to never cross. Many partners express a fear that planning for divorce actually leads to it, but rest assured that discussing these realities before saying “I do” actually strengthens the bond for many couples.
  2. Be open to their ideas and approach from a place of compassion. While you may have a clear idea of what you want based on personal or family experience, be open to your partner’s suggestions and concerns. Remember that prenups are not one size fits all! And that empathy and making your partner feel heard is more important that getting your ideal outcome.
  3. Outline the options and encourage them to do research on their own. You should come prepared to this discussion with a working knowledge of the process; for instance, the option to draft online, to opt for a standard agreement reviewed by both party’s individual lawyers, or to have a custom agreement — as well as the associated costs. But once you’ve shared your understanding of the process, encourage them to conduct their own research so that they feel individually empowered to advocate for themselves and their needs.

How Much Will a Prenup Cost?

The short answer: negotiating and drafting a prenuptial agreement is likely to run you anywhere from several hundred to ten-thousand dollars, depending on your location, the complexity of the agreement, and the lawyers’ rate.

Simple agreements can generally be drafted for a flat fee, which tends to vary significantly based on your state. Forbes reports that the average prenup nationally costs $650, while the average for a wealthier state like California is $975. There are also tech players in the space, which simplify the process for couples seeking a relatively standard agreement.

That said, with more complex estates with many assets or debts to account for, many lawyers will charge an hourly rate. Remember, that it’s crucial for each partner to retain their own counsel, and that the two lawyers should be of a comparable stature or price, so you can expect to take your lawyer’s rate and double it for the total expense accrued by the couple.

Given agreements may only hold up in court if they’re drafted with the help of comparable lawyers, it’s perfectly reasonable to ask the wealthier partner to pay for both lawyers. If you are the wealthier partner, you might establish a sense of mutual respect by offering up-front to (help) pay for the lawyer of your partner’s choosing.

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