Pre-Nups: Maybe Necessary, Necessary, Offensive, or Harmless?

all weddings should end just like this one

A prenup is:

a) Only necessary if one of the parties is a money-grubbing wench/weasel.
b) Imperative, considering the insanely high divorce rate. You’d be an idiot not to demand one.
c) Totally and completely offensive. If your beloved asks you to sign one, you’re better off running for the hills.
d) Nothing to be scared of.

According to Jodi Krieger, a partner at Kleinberg, Kaplan, Wolff & Cohen, P.C., who specializes in family wealth planning and has been on both sides of the prenuptial agreement — that is to say the moneyed side and the non-moneyed side — the answer is, of course, the last one, d) Nothing to be scared of. And yet, the very words prenuptial agreement produce a staggering amount of controversy among young couples in love, especially when one party has assets and the other has none.

Krieger understands how and why couples entering into marriage are freaked out by the prenup, a once semi-old-fashioned idea that has experienced a resurgence in popularity in recent years as couples are getting married later in life after having built up substantial savings. (Those that come from families with money are also ripe for a prenup.) It’s at this time, pre-marriage, before emotions are at an all-time high — as they are in divorce — that a couple is most suited to make these essential arrangements.

Advising couples to thoughtfully consider the agreement well in advance of their wedding date, Krieger says this is the best time to tackle the prenup. That’s when “things are fair. Nobody’s trying to take advantage of anyone at this point.” It’s just “two people at a point in their life where they truly love each other and can think clearly as opposed to being in the throes of a divorce.” Krieger says this with a logic and clarity that makes me wonder why I was so freaked out last year when my partner told me he wouldn’t get married without one.

The rash, over-protective part of me had actually wanted to break up with him on the spot. “Wait, you’re serious? You’d seriously need me to sign a prenup, or you wouldn’t marry me?” I asked, shocked and hurt and also feeling a little bit betrayed and more than a lot blindsided. If he thought I was only after his money — and honestly if it was money I was after, I’d have gone and found myself a nice investment banker, not some ambitious guy with a start-up— then maybe we weren’t meant to be together at all.

Sure, it was true that he made a lot more money than I did and probably ever would, so long as his business continued flourishing and I remained a struggling writer, but what about all of the non-monetary ways I contributed and would continue to contribute to our partnership? I cooked dinner; he paid for it. While that had always seemed like a fair arrangement for both of us in the past, I grew paranoid wondering if he thought I was somehow taking advantage of him and his wallet.

Since we’d started seeing each other, my partner had always been generous with his money as far as I was concerned. I don’t mean that he ever handed me his credit card and said “Hey, baby, knock yourself out at Bloomingdale’s,” but he was not at all stingy, picking up the tab at 75 percent of our meals out, upgrading me to first class beside him when we flew, letting me borrow the car (which he often called “ours”) and never asking me for gas or toll money. Now, I wondered if all of his giving and my taking weren’t being thrown back in my face with this introduction of a prenup.

Prenup agreements, if they do nothing else, stir great emotions and throw all sensibility and logic out the window. I viewed my partner’s resolute insistence that we don’t marry without a prenup as a referendum on the strength of our union. I thought it threatened the foundation of our relationship. So what you’re saying, I wanted to know, is that our love for each other means nothing?

Of course that was being overly dramatic, a stance I often took to when playing defense. But that is the point: it made me defensive. I had to try and separate my intense emotional state from the practicality of the issue. My partner’s level-headedness on the subject didn’t change the way he felt about me.

Although we both came from parents with intact marriages — his more than mine, given my father’s dalliances over the years — we knew all about the high divorce rate, the challenges of monogamy, the simple fact that sometimes people change and fall out of love. It’s not that we thought any of this was going to happen to us, but we also weren’t a googly-eyed couple who believed we were invincible to life’s hardships.

When my partner said was that he didn’t want me to leave him and try to take his “cookies,” he wasn’t trying to hurt me. He was simply trying to protect himself and the livelihood he’d worked so hard to build. As long as we were together, which is what we both wanted, I could share his wealth, his “cookies” as it were. (Even in our most serious and uncomfortable of discussions, he found a way to soften the blow with a cute choice of words.)

I slowly started to feel more at ease. I still didn’t want to entertain the idea of us not working out, but who does? It’s an ugly scenario when we’re deeply in love and fully committed. When you have a best friend in your partner, as I do, you can’t imagine that ever going away. Of course, that’s why there’s more emotion than pure logic that goes into thinking about prenups, because of the unavoidable assumption: we’re getting divorced, which is what Krieger admits is running through her clients’ heads. Yet, it’s her belief that discussing what’s fair now, before you wind up in a place of heartache that you never ever expected to be, is the far better option for both parties. It’s hard to argue with that good sense.

At the end of our conversation, Krieger pressed me for some more specifics on my situation. I shyly explained that a prenup was on the horizon, and she laughed and said, “Good luck. Don’t be afraid of them.” I wasn’t. I told my sweetie just last week that I’d have no problem signing one. I meant it, too.

 

Stacey Gawronski is an editor at Refinery29, and her work has appeared in The Huffington Post, New York Family, Yahoo Shine!, xojane, and more.

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21 Comments / Post A Comment

I had the same immediate reaction to the suggestion of a pre-nup! I was pretty annoyed and hurt. Then my now husband said that he wanted one because of the way we do our retirement savings. Pretty much all of our retirement is in his name, through his job. And he reminded me that if we ever did get divorced, I’d have next to nothing in that realm, and he’d have enough to support two people. We actually never got a pre-nup, but I never thought of it in a way that it’s not necessarily the money we have NOW, but the money we’ll have in the future that’s important too!

dotcommie (#662)

Ugh. Another thing to take care of before my end-of-summer wedding. How does this work, exactly? Does one lawyer do it for both of you? If so, where does their fiduciary duty lie? Does each party get their own lawyer? That seems unpleasantly adversarial.

ThatJenn (#916)

@dotcommie You each need your own lawyer if you’re doing it the “right way.”

I wrote up a little word document and had us both sign it with a notary, because otherwise it was going to be thousands of dollars I didn’t have easy access to in order to get it done. Probably wouldn’t hold up in court but at least we have something in writing describing our wishes at the time we got married.

Tax Token (#6,772)

@dotcommie Yeah, if you want to make sure it is upheld in court, you would each have your own lawyer, and it would be good to have it signed no later than a month before the wedding date.

It doesn’t have to be an adversarial process, especially if you have already talked about it and are on the same page already. I think estate planning attorneys with prenup experience tend to be less combative in the process than litigators, but YMMV.

annpan (#3,219)

A couple of months ago I was having brunch with my boyfriend’s family and the subject of pre-nups came up. After half-listening to the conversation, I chirped, “I don’t think there’s anything wrong with pre-nups! I think that they are smart!” The wide-eyed, shocked silence was broken eventually by awkward chuckles and my boyfriend’s mom saying “[boyfriend's dad] suggested that we get a pre-nup before our wedding. I told him if he ever brought it up again, there would be no wedding.” OOPS. YIKES.

Runawaytwin (#2,693)

Can someone explain to me how a pre-nup can or does deal with one partner not working for an extended period of time? My BF and I are both financially solvent (only debt is HIS mortgage) and I’m petrified of losing my autonomy but know that if/were we to have kids: I would wind up staying home and not working. I make a good income now and contribute but not as much as he does.

I cant help but feel that with marriage women are on the losing end of everything :(

Allison (#4,509)

@Runawaytwin That’s probably pretty standard language in a prenup. (few things in our lives are original or unique) You’d have to ask a lawyer to be sure, but I’d be surprised it if was addressed.

And I think you can just replace the word marriage in your last sentence with “our patriarchal society”.

@Allison Courts also usually recognize time taken off from a career for childrearing as compensable in a divorce.

Allison (#4,509)

@Josh Michtom@facebook Yep, and then you get MRAs shouting about how alimony is proof the world is against men.

la_di_da (#1,425)

My mother told me I’d have to get a prenup. I’d like to think I’d have some savings of my own coming into a marriage, but she’s got more and the truth is that even non-crazy family money, in case of a divorce, should go to my kids or at least not be split with an ex. I was weirded out by them but now I’ve come around to the conclusion that, yeah, if I ever got divorced I’d be a mess, let’s have an exit plan now while we still like each other, just in case.

What, exactly, does a prenup cover? And what if your finances change dramatically?

Tax Token (#6,772)

@TrotskyHoldsMyiPod A prenup basically sets out what would happen to your financials in event of a divorce ahead of time. It can include protection of certain assets or business interests. It can include a waiver of alimony. Provisions regarding child custody/support won’t be included – that would be sorted out later.

Just as an aside, most prenups are actually signed before a second marriage to preserve the inheritance rights of children of the first marriage.

Your finances can change dramatically. As long as your prenup is valid (i.e. “done right,” with full disclosure of financials, etc.), then it will probably still be upheld, even if it is one-sided. Some courts/states are more favorable to challenges than others, of course.

tussock (#1,296)

@Tax Token I’d be interested to see the Billfold do a follow-up with a divorce lawyer on this. Kleinberg’s advice is interesting, but she has pre-nups to sell, right? My sense is that pre-nups become less effective the longer it’s been since the marriage, though of course it must vary by state. But still, there must be a cost-benefit analysis to this decision.

Tax Token (#6,772)

@tussock That would be interesting! I will say, you definitely save on the legal fees of going through a lengthy divorce by signing a prenup if you are on the moneyed side. As for cost-benefit analysis, it really depends on your negotiation position at the time of the prenup relative to what it would be at the time of divorce. Maybe not the most romantic terms, but that’s the reality.

Prenups are less effective over time if the couple doesn’t live according to the terms – i.e., starts mixing up their money so much that it is no longer clear/possible to track which assets went where. This is waiving the prenup, in effect. If you keep the assets contemplated by the prenup separate in practice over the course of your marriage, you will protect those assets in a divorce – highly effective if you are talking about let’s say twenty years of appreciation!

@tussock Good idea! WIll look into it.

Vib G Yor (#3,566)

I’m getting a pre-nup because my future husband has a lot of family money and it’s what family money people do. We’re about to combine our lives, and his money is about to change my life in a big way. Suddenly the imperative to “work to survive” will be completely gone, and I’m still coming to terms with that. But if I decide to take any leaps of faith and start a business or become an artist or something risky like that, I want to know what I’m risking. I like the idea of a pre-nup because I’ll KNOW what will happen if we divorce, and whatever that is, I can make a plan to avoid the poorhouse.

garli (#4,150)

I didn’t get a pre-nup. My husband and I make about the same money. He had a much, much larger retirement account when we got married because he worked through his early 20′s and I went to grad school. I have more earning potential in the future.

I asked if he wanted one and he said no, so we didn’t bother. I felt like he had more to lose and if he wasn’t worried I wouldn’t be either.

ThatJenn (#916)

I recently turned down a job offer in San Diego (which made me a little sad… getting out of Florida would have its perks), and while it was in no way a factor in my decision on the job, I’m sort of relieved that I won’t be moving to a community property state (i.e., one where my informal pre-nup and our wishes wouldn’t matter at all – everything each of us owns belongs to both of us, 50/50, whether we like it or not).

ThatJenn (#916)

@ThatJenn My husband and I obviously don’t plan to divorce, but we also both like knowing that if something is in just one of our names, it belongs to just us, to a large extent. In a divorce that might change since our pre-nup is quite informal and is really just some guiding principles we’d like to go by if we ever have to split our finances up completely, but at least in marriage we can be confident that, for instance, my car is my car, I can sell it without his permission, etc. (This might be true in other states too even with community property laws or, like, Connecticut’s weird clause that you need your spouse’s signature to open a new credit card, but I get super jumpy about that stuff due to the year I spent before my divorce still legally married to someone I did not live with or communicate much with.)

nell (#4,295)

Oof…I have a very good friend who has some serious family money and she asked me outright if I thought she should get a pre nup (she got married a couple years ago). I had and still have doubts about her husband and I wanted to say yes so badly but I chickened out and said something vague (and in the end she didn’t get one).

eatmoredumplings (#3,808)

I’m friends with two lovely lawyers from well-off families who, when my husband and I were engaged, explained a view on pre-nups that was very similar to Krieger’s. They said, “If you really love each other, you should absolutely get a pre-nup, because you can use it to protect the other person from your future self. The decisions you make now, when you’re feeling so much love, might be more generous than in the future if your feelings change.” Pre-nups as not only “not scary,” but a positive expression of love!

My husband and I said, “that’s interesting,” and laughed it off – neither of us has enough assets or earning power for it to be worth the bother. But those two are getting married this year, and I’m sure they’re putting one together :)

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