TO PRE OR NOT TO PRE WHEN YOUR MATE POPS THE QUESTION
“Marriage is not just a private love story but also a social and economical contract of the strictest order. If it weren’t, there wouldn’t be thousands of municipal, state, and federal laws pertaining to our matrimonial union.”
—Elizabeth Gilbert
Even people who appreciate horror novels and movies might be frightened out of their wits if their spouse-to-be announced, “Honey, I’d like you to sign a prenup.”
A prenuptial agreement (or prenup) is a legal agreement a couple enters into before they get married. There are a lot of misconceptions about prenups, and, because of that, far too many people are afraid of or reject the notion of prenups. As with many aspects of traditional marriage, that thinking is antiquated and small-minded. As you have seen earlier in the book, marriage is a legal contract. To ignore that reality and enter into that legal contract before discussing “business” is not only impractical but also foolish, regardless of what kind of marriage you have.
The marital models in this book require you to take off your rose-colored glasses and romantic notions about love and see marriage as a wonderful union with goals, responsibilities, and ways to measure how well you are doing, as a couple and as a spouse. You can’t determine if something is successful or not unless you are extremely clear about the tasks at hand. Writing it down and mutually agreeing on what you’re doing will help you hold yourself and each other accountable. You have a different objective than just “lifelong” love and “happily-ever-after”—it isn’t about building a life with someone, it’s about building a specific kind of life.
It’s no coincidence that 20 percent of marriages in which one spouse has been married before seeks a prenup, compared with just 5 percent of first-time marriers. All it takes is a divorce to get people to understand that marriage is still very much about money and property. Those who have previously wed and, in one form or another, got burned, likely want to avoid making the same mistake. The spouse who was obliged to pay a lot of money to the former spouse would not want to leave that to chance again, while the spouse who came away empty-handed or felt the outcome of his or her first divorce was unfair wouldn’t want to be that naive or vulnerable again.
Most legal and financial experts advise couples to protect themselves. And thankfully, more people are listening, not just the rich and famous who have millions at stake, according to the American Academy of Matrimonial Lawyers, which pays attention to such things. We take the increased interest in prenups as a sign that spouses-to-be are getting smarter and are acknowledging that business and romance can indeed go hand in hand.
We outline below some ideas of what you might want to include in a prenup or, if you are transforming an existing marriage, a postnup—a contract you create after you are already married—for each of the models in the book. But, just for fun, let’s test your knowledge about prenups first and then do some myth-busting. And maybe, after that, you’ll see that your misconceived notions have been holding you back from thinking a prenup is for you.
WHAT DO YOU KNOW ABOUT PRENUPS?
True or False:
NOW LET’S TAKE A LOOK AT THE ANSWERS:
1. A prenup is only for the wealthy. FALSE. But one of the most frequently preconceived notions about prenups is that they are only for rich people who want to protect their assets. The truth is, most people can benefit from outlining who will get what in the event of a breakup.
2. A prenup only protects one of the spouses. FALSE. Prenups can—and often do—protect both spouses. As long as you both have input, you can make sure both of you are protected.
3. If you’re both broke, you don’t need a prenup. FALSE. If you have no assets to protect, you may not feel it’s worth getting a prenup. However, you can still opt to get one to outline what your expectations are around your future goals and prospective financial well-being, as well as to discuss how any debt you accrue will be handled. (For example, student loan debt that a spouse comes into the marriage with may be paid off by the couple or not.)
4. You don’t need a lawyer to write your prenup. You can write it yourselves. IT DEPENDS. Check your state laws. Most attorneys will tell you that you need to have it properly drawn up and signed off on by an attorney. Even Nolo, a leading publisher of do-it-yourself legal books and software to help laypeople represent themselves legally where possible, advises that while you can certainly do your own research, it’s best to get legal representation for prenups.
5. Only people who don’t trust each other need prenups. FALSE. Getting a prenup actually says you understand the fragility of life and that you are not in denial that anything is possible—even your worst-case scenario. There are just way too many factors that come into play in life. Yes, it is divorce-preparedness, which is why many people don’t like the idea of them, believing that if you talk about divorce before you even marry, you are setting yourself up for divorce. Except that is wrong. Prenups establish agreements so you know you’re both playing by the same rules. Far from impeding trust, making agreements fosters trust.
6. You can address fidelity in your prenup. TRUE. There is a “fidelity clause” that you can write into your prenup. If you trust your partner, you probably cannot imagine that he or she would cheat on you. As much as we hate to be the bearer of bad news, it happens—more than you’d care to think (as we detailed in previous chapters). Fidelity clauses are not valid in every state, so be sure to check with your attorney to know if it’s an option for you.
7. It’s easier to come up with agreements when you’re on good terms than when you’re on bad terms. TRUE. Well, of course.
8. You can outline your financial goals in a prenup. TRUE. Prenups are not just to help you plan for life after your marriage ends; they can be used to map out financial goals, child and parenting goals, business venture goals, and much more. It’s your “financial mission statement.”
9. A prenup has to be in writing to be enforceable. TRUE. The Statue of Frauds requires that a prenup must be in writing to be enforceable.
10. A postnup carries more weight than a prenup. TRUE. Once you are married, each spouse has a fiduciary duty to the other. Each spouse must make full disclosure of all material facts and information to the best of his or her knowledge regarding the existence, characterization, and valuation of community assets and debts. Each spouse must also act with all of the following: the highest standard of care and the highest order of good faith and fair dealing, among other things. Although your spouse-to-be undoubtedly expects you to be honest, this standard does not legally apply before you are married. Unfortunately, a fair number of future-spouses hide or diminish the value of their assets.
11. Once your prenup is signed, it can’t be changed. FALSE. Prenups may be changed, but, as you learned from question 10, if you renegotiate the terms of the contract post-wedding date, it’s no longer a prenup but a postnup.
12. You can decide who gets the family dog in a prenup. TRUE. You can absolutely delineate who gets Fifi or Fido. In fact, this is often one of the greatest points of contention with couples, as many more couples are sharing custody of pets these days.
13. You can make decisions about child custody in a prenup. FALSE. It would be nearly impossible to predict ahead of time all the factors that determine the best custody arrangements for children, and it’s against public policy to do so. Even if you were to stipulate certain conditions in the premarital agreement, they would likely get thrown out of court by the judge.
14. You can decide how many children you want to have (if any) in a prenup. TRUE. You can certainly state how many children you’d like to have in your prenup as an ideal, but what is enforceable will depend on your state’s laws. However, this is a complex question that requires legal counsel.
15. Prenups can set agreements for the marriage, not just for a potential breakup (for example, both spouses will be expected to maintain employment during the entire length of the marriage). TRUE. As you’ll learn later in this chapter, many aspects of marriage can be spelled out.
16. A prenup trumps state law. FALSE. Prenups merely allow you to opt out of state law on some issues.
17. Prenups work best when you’re older. MOSTLY TRUE. Prenups generally work as well as they are written and as well as they hold up in court, no matter how old or young the signers are. That said, despite the new generation of young billionaires like Facebook founder Mark Zuckerberg (no word on whether he had a prenup when he wed in 2012, but we’d be willing to bet that he did), older people tend to have more wealth, and prenups are designed to protect assets. And since many older people are more likely to have a prior marriage, which may have ended in an ugly, messy divorce, they are more likely to want a prenup if they marry again.
18. You should hire your own attorney to advise you on the prenup. TRUE. In fact, some states require you to hire your own attorney. If you don’t have proper representation, there’s a risk that the entire agreement will be invalidated. Keep in mind that the cliché “you get what your pay for” is true in this case.
19. It’s okay to ask your betrothed to sign a prenup any time prior to the wedding. IT DEPENDS. This is a trick question, but it’s an important one for which you must know the answer. Check with your attorney and your state laws. Asking someone to sign a prenup with no discussion and no legal representation thirty minutes prior to the ceremony—when your loved ones are gathered and you are a vision of white (or black-and-white)—is not a great idea. Presenting a prenup under these circumstances will likely invalidate it, provided your spouse can prove this was how it was executed.
20. Prenups can be used to clarify and memorialize your intentions around childbirth and fertility treatment. TRUE. Despite the fact that this clause may not hold up in court, the value in writing about your intentions to freeze an embryo or undertake IVF is that it shows the court what your intentions were at the time of marriage.
PRENUPS FOR YOUR PARTICULAR FLAVOR OF MARRIAGE
Now that you have a better understanding of prenups and postnups, let’s explore what prenups might want to address for each of the marital models in this book. But first, a warning: we are not lawyers, so what is presented below is no substitute for sound legal advice. Our intention is solely to give you a few ideas of what you may want to consider when you, your future spouse, and your attorneys are ready to craft your agreement. In all cases, we recommend that you defer to the judgment of the professional you hired who knows the local laws as well as your situation intimately.
STARTER MARRIAGE
In many ways, this is the perfect time to do a prenup because you have a blank slate, meaning that you don’t have kids or debts and responsibilities from a previous marriage. You and your partner can create any number of agreements and goals for your time-limited future together.
Of course, the Starter Marriage prenup is also a little tricky because, under public policy, you can’t encourage divorce. So rather than it being referred to as a prenup, your time-limited contract is best referred to as a term agreement. In this agreement, you can outline how you would like the next five years (or two or ten, depending on the agreed-upon term) to look and what you’d like to accomplish. The number one rule of this marriage, however, is that you both must agree not to have children. You must put that in writing, as well as the mutually agreed-to birth control methods you will use and what you plan to do in the event of a pregnancy. Depending on your age, you might also want to include a provision for paying for freezing your eggs—is he responsible for paying a share even though she may go on to use her eggs with some other partner in the event they don’t stay together?—and establish who “owns” the eggs.
Another important aspect to the agreement might include the division of labor. It seems silly to have to put that in writing, but if you and your partner agree that having an egalitarian marriage is important to you, it is imperative to spell out who does what so there are no false assumptions and expectations. Since many couples fight over chores, and since many women tend to do more of them, having something in writing will keep you accountable to each other.
Another thing newlyweds have problems with is communication. While you can’t make your partner be a better communicator, you can set the ground rules of what your communication will look like. Think you need to take some nonviolent communication classes together? Write it down. Do you want to have a weekly or a monthly or a yearly check-in to see where you both are in your goals? Write it down. You certainly will want to agree to when you should start talking about renewing your contract, or not, as the deadline nears. And, you will want to include a stipulation that each of you be honest about how things are going well in advance of the deadline; if what you have been hearing from your partner all along is that things are great and then, right before it’s time to renew, boom—she tells you that she’s been miserable, that would indicate that there has been some level of deception. Remember, the purpose of this marriage is to gain self-knowledge and an understanding of what marriage feels like and how you act in it. If you are not being honest with each other, you will have learned nothing.
Another essential is agreeing to finances. Since many people are marrying later and come into a partnership with nest eggs of their own and perhaps even property, these will need to be addressed. So will any student loan debt. While you’re at it, you or your partner may want to go to grad school; you’ll need to figure out how that will impact finances, household chores, and whether you will have to move to another city, state, or country, perhaps requiring one of you to give up a job.
The rest of the contract is really up to you and your spouse to design. If you want to add a fidelity agreement (or if you are incorporating all or some of the elements of an Open Marriage), spell it out. It’s also a good idea to discuss whether you will commit to therapy if problems arise. Aspirations such as wanting to save a chunk of money by the end of the term may be included. If vows are renewed, you would be able to put that money toward a baby fund or the purchase of a home; if you split up, it could come in handy to pay for legal fees to process your dissolution.
COMPANIONSHIP MARRIAGE
You may be younger, you may be older, but you don’t plan to have children together as you enter into a Companionship Marriage (although one or both of you may have children from a previous marriage, ). You’re also not marrying for money. You may be in a similar place financially as your spouse, or you may not be. The bottom line is that you are partnering with someone whose company you enjoy and with whom you hope to spend many years being friends.
As you read in the chapter, this is often the marriage of childfree couples. But if you have older children from a previous relationship, you might want to detail whether they can stay in your house when they visit and if you will help them out financially, say to purchase a house. Blending households, even when the children are adults, adds many layers of complications—it’s good to be clear about your expectations. It’s also important to know that, without a prenup, state law would dictate who would get what—property, money, and other assets. In some cases, a spouse might not be entitled to keep the house she is living in if her spouse dies without a will. Instead, it might go to his children. That could be devastating—especially if there is some bad blood. Write it down.
As with every other marital model, you will want to address domestic roles, especially if you are marrying for the first time and are used to having your house and stuff look a certain way, or if you raised your family in a previous marriage and now are not too keen on taking up the role of domestic goddess again. If you can afford it, an agreement on hiring a housekeeper, a gardener, or both might help. A plan for long-term caregiving should be addressed as well.
Another consideration would be what happens if one of you is ready to retire and the other is not. The new retiree may look forward to travel and adventure, which may not be feasible for the still-employed spouse. An agreement of how to balance travel together with solo travel or travel with friends might be helpful.
As with every other model, a couple may choose to renegotiate their Companionship Marriage to transform it into another model or incorporate elements of another model.
PARENTING MARRIAGE
A prenup for a Parenting Marriage will likely be the most elaborate prenup of all the marital models (although an Open Marriage may come close). As divorced parents know, they have to spell out just about everything that pertains to their kids. You will need to do that, too. Yes, it’s exhausting.
While this model requires a long list of agreements, two are key—the length of time you and your partner commit to being together (as this is a time-limited contract), and an action plan addressing parenting philosophies. Ideally, parents should commit to stick together for about eighteen years, or the time that their child graduates from high school and is ready for college, a trade school, or employment. The contract will have to extend for each child, as you will want to give your youngest the same stability his or her older siblings have. All of which means you may be married for a long time. While on the surface it will look no different than traditional marriages, which often end at around the same time, when a child graduates high school, it is not, because of all the extensive planning that goes into it and because parents did not come together for love—just to have kids.
That brings up the second key requirement: co-parents must agree on parenting philosophies and styles and have a plan in place to respectfully address how to handle any future schisms. Part of the beauty and perhaps the challenge of this model is that it is structured to be a lot less conflict-ridden than a couple that comes together because of love. This marriage is grounded in expectations that are realistic and in goals that are narrowly focused—to provide a loving, respectful, nourishing, safe, secure, and stable home for children. Therefore, every item you and your partner agree to must have that goal in mind. You may want to seek professional help first, as Rami Aizic and his co-parent did (his story is in the Parenting Marriage chapter), on a one-time or continuing basis, or take parenting classes together; these, too, should be spelled out in your prenup.
Other things to be planned are whether you will live in the same house with your co-parent; how you will financially support your kids; whether one or both of you will be expected to have paid work, and how to accommodate changes in employment such as a job loss, flex time, moving for a new job opportunity, and long-distant commuting; how many children you hope to have and their spacing; if infertility is an issue, deciding if you would adopt or use IVF or both, and how many series you are willing and able to fund; whether you will freeze any eggs or embryos; who will care for the kids—an at-home parent, daycare, nannies, a live-in au pair, or relatives; which schooling options you will choose, such as private, public, homeschooling, and special ed; whether you will vaccinate or not; how to spend leisure and family time; whether you’d like the kids to participate in religious training; and how to save for college. Obviously, inheritance and life insurance are vital topics, as well as guardianship in the event that both you and your spouse die prematurely (these are estate-planning issues).
Because couples typically argue the most about household chores and time caring for the kids—and we don’t mean time playing with the kids—you and your partner will have to exhaustively detail what your expectations are. Again, one of the goals of this marriage is to reduce household conflict.
Because your children’s needs change as they get older, so, too, will your agreement need to change. You should agree to a regular schedule of check-ins, ideally no less than once a year, to anticipate what might need to be adjusted.
And, while the marriage is designed to be renewed (or not) after the agreed-to time is over, things happen. So, you need to have a plan of action in place in the event of a split. Here, too, it is against public policy to encourage divorce in a prenup, so planning as if you are sure your marriage will end isn’t appropriate. Planning “in the event of divorce” is fine so you can address the possibility that the marriage will end. If you and your partner stay together, you will need to renegotiate your Parenting Marriage to transform it into another model.
LIVING ALONE TOGETHER (LAT) MARRIAGE
By the nature of this arrangement, addressing the obvious—how long you and your partner will live apart and how often you will see each other—is where you would want to start your prenup. From there, you will need to outline who comes to whom (do you take turns, is there a primary residence, do you meet halfway, etc.); how expenses will be handled (are travel costs shared; are rent, maintenance, and utilities shared, etc.); and how you will stay connected (emails, texts, Skype, etc.) and how often.
If you have children at home, your agreement must include their concerns as well as your spouse’s. You might want to make provisions to help avoid the “super-parent” syndrome by hiring help. You and your spouse should also be clear on how frequently you will come home, scheduled family time, how you will keep connected to your children, and allowances for ongoing family counseling to help everyone have a safe place to address their concerns.
If you don’t have an Open Marriage as well, a fidelity clause defining what constitutes infidelity in your marriage should be agreed to. You may also want to clarify how much information you need from each other (do you need to know who your spouse is spending time with, what he or she does with off-work time, etc.). You may also want to agree that you should meet each other’s coworkers, friends, and neighbors to feel more connected to your partner’s other life.
Finally, a plan of action should be agreed to that details what would happen if one spouse lost employment (would you move in together, continue to pay for both places, create a budget for such emergencies?) and what will happen if you agree that you no longer wish to live apart.
As with every other model, a couple may choose to renegotiate their LAT Marriage to transform it into another model or incorporate elements of another model.
Despite the fact that this marriage is slated to last “for life,” Covenant marriers can still have a meaningful prenup. While the premarital agreement can certainly outline what would happen in the event of a dissolution of the marriage (such as, the person who breaks the covenant is not entitled to any of the assets accumulated during the marriage, or will be asked to leave the community or church), this contract may focus more on how the marriage will be set up, including such typical issues as employment, children, religious practice, and financial concerns.
Although most couples that choose this type of marriage tend to be traditionally oriented, that does not necessarily mean you can’t create a more egalitarian model, especially in the typical gendered sphere of household chores and childcare. It is clear from the laws in each of the three states that recognize Covenant Marriages that there should be no addiction, abuse, criminal involvement, or abandonment, as those behaviors constitute legitimate grounds for divorce, but this can certainly be included in the prenup as extra “insurance.” Given that counseling is an imperative in the Covenant Marriage if problems arise in the marriage, it might be helpful to set an expectation of how soon, how long, and under what circumstances you would seek professional guidance.
SAFETY MARRIAGE
Since this marriage is all about the business of marriage and a prenup is all about the business of marriage, this prenup may read like a corporate partnership compared with the other prenups.
Job descriptions and responsibilities may be laid out: one spouse might be the sole breadwinner, while the other will be in charge of maintaining the household, taking care of the kids, calendaring social events, and perhaps even helping with aspects of a family business. Assets and interests on both sides of that family business, intellectual property or other sources of income, spending allowances, and what goods and services are to be exchanged may all be addressed in this prenup.
There should be a plan of action to address any disruption to the power balance in the couple, such as if the breadwinning spouse loses a job, takes a lower-paying job, returns to school to earn a higher degree, suffers financial devastation, or becomes ill or disabled and unable to work. There should also be provisions if the lesser-earning spouse becomes an equal or higher earner.
Understanding and agreeing about how children will be cared for financially and otherwise will be important. If there are children from other marriages and outgoing spousal support to a former spouse or spouses, that will also need to be factored in.
If the main reason for choosing a Safety Marriage is about financial well-being, an agreement should be made about any expectation of being taken care of if the marriage doesn’t last—especially by the one receiving monetary support who may have given up a career in service of the marriage or parenthood.
Paragraphs dealing with fidelity, inheritance, right of survivorship, and the waiving of rights to certain assets are pertinent concerns in a Safety Marriage prenup. And, of course, we think it’s important to have a clause that includes if and when the couple would seek professional help if problems arose in the marriage that were too big for them to handle alone.
As with every other model, a couple may choose to renegotiate their Safety Marriage to transform it into another model or incorporate elements of another model.
OPEN MARRIAGE
A relationship with one person is complicated. Having relationships, whether sexual or sexual and emotional, with other people has the potential to be extremely complicated. That’s why this prenup will need to clearly spell out the terms of how open sexual relations will be handled by both parties within the marriage and outside it. Because consensual non-monogamy comes in so many varieties, it is impossible to include the many details you and your partner will need to agree to. There are books written on that alone (and that is why many people believe as imperfect as monogamy may be, it’s a lot less complicated).
But here are a few basic things you might want to start off with. You and your partner will need to decide the type of sexual exploration you desire—together, apart, or a combination of both. You will need to agree on whether you are poly, are into swinging, enjoy three- and foursomes together, or are willing to give each other the occasional hall pass. And you will need to agree on whether this is your lifestyle or a limited experimentation.
Creating a prenup for a poly family is too much for us to address here, so we are mostly focusing on couples that see themselves as monogamish and are looking for sexual pleasure more than deep, ongoing emotional connections to another person or persons.
The most urgent needs of an Open Marriage prenup address honesty, communication, trust, transparency, time management, safety, and jealousy. You will need to give more thought to establishing the rules governing honesty than anything else. You need to agree if you have a don’t-ask-don’t-tell arrangement or whether you both want to know all the dirty details. You will also need to agree on how much time you each may spend with others without compromising your partnership.
Other agreements might include discretion in partner choices; same-sex or strictly opposite sex; safe-sex; pregnancy-preventative contraceptives; whether the family home is off limits; in what ways you may change the agreement if and when you have children; and what to do if someone changes his or her mind and wants to close up the marriage. A hugely important consideration is what you will do if a nonmarital partner gets pregnant or if you or your wife gets pregnant by a lover. How will that be handled emotionally and financially?
You get the idea. There are lots of little nooks and crannies where complications and disagreements can occur, so the more you cover, the better. Mutual understanding and agreement of the terms are a must in this marriage.
You may certainly detail all the usual agreements relating to home and work life, spousal and parental duties, and financial issues, but, if you do, you might never get around to the actual sex!
As with every other model, a couple may choose to renegotiate their Open Marriage, to transform it into another model, or incorporate elements of another model into this one.
YOU’RE ON YOUR WAY
As far as fear of prenups goes, we’d like to see that become a thing of the past. Not only do premarital agreements clarify your reasons for marrying, but, as you now know, they also help you set goals for your marriage. It’s one thing to make goals; it’s another thing to write them down. We can’t emphasize enough the importance of writing down your goals.
Words on paper are not vague notions of dreams, aspirations, and hopes. They are a guide, a road map, that holds you accountable, that allows you to measure progress, and that can help keep you on track to continually making the right decisions to help you achieve your heart’s desires.
And they can, and should, be frequently discussed and renewed as your life situations change.
READ MORE
Curious about prenups and postnups? Here are some books to read for insight and guidance:
• 1001 Questions to Ask Before You Get Married by Monica Leahy (McGraw-Hill, 2004).
• Divorce: Think Financially, Not Emotionally: What Women Need to Know About Securing Their Financial Future Before, During, and After Divorce by Jeff Landers (Sourced Media Books, 2012).
• The Hard Questions: 100 Questions to Ask Before You Say “I Do” by Susan Piver (Tarcher/Putnam, 2007).
• I Do, You Do . . . but Just Sign Here: A Quick and Easy Guide to Cohabitation, Prenuptial and Postnuptial Agreements by Scott N. Weston and Robert Nachshin (Execuprov Pr, 2004).
• Prenuptial Agreements: How to Write a Fair and Lasting Contract by Katherine Stoner and Shae Irving, JD (Nolo Press, 2012).
• Prenups for Lovers: A Romantic Guide to Prenuptial Agreements by Arlene Dubin (Random House, 2001).
• What to Do Before You Say “I Do” by Susan Ziggy (AuthorHouse, 2013).