Prenuptial Agreements: Divorce Insurance or Insurance from Divorce?

From guest-blogger Rebecca Lawrence, Regent 2L and current Family Law student: 

Between "Will you marry me" and the "I Do's," it is perceived that there is nothing less romantic than the prenuptial agreement. However, is the prenuptial agreement as bad as it is made out to be?

Prenuptial agreements are almost always, though misguidedly, synonymous with divorce. When contemplating a prenuptial agreement, escalating questions regarding belief in the union often commence. "You don't have faith in our relationship?" "You don't think our marriage will last?" "You're already thinking about divorce?" All of these questions boil down to a single and more simplistic one. "You don't trust me?" This supposed lack of trust is then believed to be what causes the need for "divorce insurance" (which has been discussed on this blog before). Such "insurance" creates an idea that when the union "inevitably breaks down" the unhappy party may simplistically dissolve it because the mess of divorce is absorbed by the prenuptial agreement. However, prenuptial agreements aren't necessarily a disgusting expediter for divorce, but instead can be a positive, practical, and even romantic gesture for those who choose to recognize it.

Rather than divorce insurance, the prenuptial agreement can be insurance from divorce. Much different from the separation agreement, the prenuptial agreement is made during a time of adoration and affection where each party truly has the other's best interests at heart. It is during this time that the motives behind the various clauses would be selfless (or at the very least neutral) instead of selfish due to angry and hurt feelings. It is during this time that the parties can truly contemplate what a fair separation of assets and liabilities will be. "We keep what we brought in," "we sell what we acquire jointly and divide it in half," "we share custody of any children," etc. It also creates recognition that no matter how you split it, if a divorce were to happen, each party leaves the table with less than what they had when they were together. Each party leaves with their life forever impacted and less bountiful than it was the day before. Neither party will be able to hug and kiss their child every day. At the end of the day, is it worth it?

When parties come to such a bitter place that divorce is considered, the bitterness is blinding. In those moments of blind anger, it is commonplace that one party, or both, believes they are in "the right" and would be able to leave the marriage with "everything" except their spouse. In those types of situations, a prenuptial agreement can shed light and bring either husband or wife back to ground level. There is no ability to create ideas of grandeur, only the cold reality that when all is said and done, they lose. What they lose is understandably different in each situation, but assuredly they lose. A prenuptial agreement puts focus on what will be lost. Thus, instead of a belief in being able to "cash in the cow," they realize exactly what they will walk away with if they walk away from the marriage and in that stark reality they can ask "is it worth it?" Now the existence of the prenuptial agreement asks "Do I want to give up my life? My property? My kids?" The knowledge of precisely what the future holds allows the parties to weigh and balance their interests. "Would it be more beneficial to my life (and my bank account) to dissolve or resolve our problems?"

With the prenuptial agreement shedding light on the truth of their future, neither party can blindly move forward even if they wanted to. And it is in that forced light that I firmly believe many will no longer think what they gain in a divorce is worth what they lose because of their prenuptial agreement. Demands cannot be made in anger and hurt because of the consideration given when love was abounding. The agreement has the ability to also serve as a reminder of that love and adoration that caused them to look out for each other in the first place. Regardless, no matter the reason, whether it be recognition of what the parties had, have, or will have, it is a fair assessment that the prenuptial agreement can keep the parties away from dissolution instead of facilitating it. Insurance from divorce? Clearly the prenuptial agreement will not have this effect on everyone but just as insurance is never perfect and it doesn't always take effect, it doesn't mean it isn't worth investing in.