A prenuptial agreement is one of the most difficult issues to discuss with your intended spouse while you’re in the thick of sending out wedding invitations, tasting cake, and deciding on a venue for the ceremony. A prenuptial agreement (also referred to as a premarital agreement or antenuptial agreement) outlines spouses’ financial rights and obligations if the marriage ends due to death or divorce. A prenuptial agreement is often advisable for a couple intending to get married in three frequent situations:
- Where one or both spouses already hold significant assets or earn significant income and wish to protect those assets or income in the event of divorce;
- Where one or both spouses already hold significant assets or earn significant income and have children from a prior relationship whose future inheritance they wish to protect; and
- Where one or both spouses anticipate receiving significant assets in the future through gifts and/or inheritances and wish to protect those assets in the event of divorce and/or death.
Your circumstances and reasoning regarding a prenuptial agreement will necessarily inform how you choose to have the “prenup conversation” with your partner. If your parents are insisting on the prenuptial agreement and threatening not to pay for the wedding if it’s not signed, that will affect how you approach the discussion with your partner (hint: if you throw all the blame on your parents, your partner may suggest eloping or resent your parents for the rest of your marriage – tread carefully!). Suppose you’re more concerned with protecting your assets so your children from your first relationship will inherit them. In that case, you might approach the conversation differently (hint: if you discuss the issues openly with your partner, they will likely understand that you’re trying to put your children first and appreciate the importance of doing so). Regardless of your particular circumstances, there are general guidelines to keep in mind in having this difficult conversation with your partner.
- Start early. Do not put off this discussion. If you wait too long, it will be a stressful and even painful exercise. To have a valid prenuptial agreement, both you and your partner must hire counsel. The agreement must be drafted, reviewed, and possibly revised several times before it is signed by both of you, typically in front of a notary public. You must prepare a financial disclosure listing your current assets, liabilities, and income. All of this takes significant time, and if your assets or situation are complex, it will take even longer than a “straightforward” prenuptial agreement. In addition, if the agreement itself is signed on the eve of your wedding, there can be an impact on the agreement’s validity in the event of divorce or death. Save yourself the headache and start discussing the prenuptial agreement at least several months before your wedding date. You do not want to be dealing with finalizing a prenuptial agreement in the final days before your wedding, when you should be focusing on finalizing numbers for the caterer, packing for your honeymoon, and writing your wedding vows.
- Choose the right time to discuss it. Like any difficult conversation that may occur during your (hopefully) long and loving marriage, choosing the right time to discuss a prenuptial agreement is essential. Do not try to bring it up when your partner is already upset or in the context of some argument between you and your partner. Ensure they are in a good mood and a positive state of mind before broaching the subject.
- Be honest and open. If you’re considering a prenuptial agreement, you undoubtedly have good reasons for wanting one. Do not attempt to conceal or be evasive about your reasons from your partner, which will backfire. Once the drafting and negotiation process begins, your partner will have a clear picture of your assets (including likely future gifts or inheritances), liabilities, and income, and your reasons for wanting a prenuptial agreement. Talk to your partner honestly and transparently about why you want one, which will also give you a strong foundation for a marriage where you can be honest and open with your spouse in general.
- Expect it to be awkward. Talking about money with your partner is awkward and probably always will be. Do not expect the prenup conversation to be easy or your partner to say, “yes, a prenup sounds great. I’ll sign whatever you want me to.” It will be awkward, and it may be difficult. Consider having several conversations. Once your partner has some time to get used to the idea of a prenuptial agreement and start to process it, the discussions may get less awkward.
- Explain the benefits of a prenuptial agreement to your partner. The primary benefit of a prenuptial agreement is that you and your partner will both have a clear understanding of how your assets and liabilities will be divided in the event of divorce and to whom your assets and liabilities will be left in your respective estate plans. A valid prenuptial agreement can make divorce far smoother (and cheaper) because the division of your assets and liabilities and possibly alimony will already be addressed. Only child-related issues, including legal custody, parenting plans, and child support, will need to be determined. This benefits both spouses because, absent a prenuptial agreement, discussing how assets and liabilities will be divided can become a contentious issue, as you and your spouse may not be on the same page about who should receive what in the event of divorce. Similarly, the estate-related provisions of your agreement set clear expectations for both of you as to what your respective estate plans will entail.
- Be collaborative. The prenuptial agreement should be a collaborative process. If you attempt to dictate the terms of the agreement or make decisions unilaterally, your partner may believe that their opinions do not matter to you. Treat your partner as an equal and make it clear that their input in the drafting process and in the specific terms of the agreement is valued and respected. If you or your partner is uncomfortable negotiating, negotiations can be through your attorneys, as you’ll both need to hire attorneys regardless to ensure that your prenuptial agreement is valid.
- Approach the prenup conversation as a discussion, not an argument. Discussing a prenuptial agreement does not need to be an argument but can be a positive discussion about setting expectations for the future and planning in the event of divorce and death. If the conversation starts to get heated or unproductive, step away and resume the discussion later.
- Use the prenup conversation to set the stage for a harmonious marriage. One of the cornerstones of a good marriage is positive and respectful communication. Discussing a prenuptial agreement may be one of the most significant conversations about planning your and your partner’s future since you first started dating. Positive communication strategies, including listening actively and carefully, being willing to see and understand your partner’s point of view, empathy, and compromising, are all skills that will serve you and your partner well throughout your marriage. If the prenup conversation is positive, you’ll be well on your way to having a long, loving, and harmonious marriage as well.
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