Pre-Nuptial Agreements, or “prenups” have a bad reputation for being a document that people only get before marriage because they either: assume the marriage will not last, or, because they do not fully trust their future spouse. Unfortunately, this bad reputation has placed such a stigma on prenups that many people believe that it is better to not get married than to marry someone who is asking for a prenup. This is not only a potentially bad decision financially, but it can also spell disaster for the potential relationship quality of a couple. This blog will go through two myths and misconceptions people have about prenuptial agreements.
Myth One: “I don’t have significant assets, so a prenup would be a waste of money.” Financially speaking, prenups are well-known to be a common method of protection for individuals who are well-off financially prior to marriage. A prenup is generally a good idea, even if you do not have significant financial assets, and especially if you live in a “community property” state. In Texas for example, there is a presumption that any property acquired during a marriage is “community property,” regardless of the source of funding used to acquire the property.[1] This presents a problem, because it requires someone claiming separate property to prove the property is separate by tracing its origins, and that generally requires litigation. I can affirm that this process is expensive, and litigants sometimes spend more money proving their separate property, than they would have paid for a prenup. If you have any property that carries a license, title, or deed before getting married, including bank accounts, investment funds, a vehicle, or real estate, you need to speak to a licensed attorney, and probably a financial advisor about how a prenup can protect your assets. Prenups can also minimize litigation over issues like spousal maintenance, or alimony, and division of liabilities. Here’s the bottom line: no one buys insurance expecting to actually use it, but it is a huge relief when it is needed, because you’re covered. Prenups work much like insurance; for a relatively low “premium,” you can save a small fortune if litigation is needed. In fact, speaking from someone who has spent the better part of the last decade composing invoices for divorce litigation, prenups can be the wisest “insurance” available.
Myth Two: “A prenup means I don’t trust my future spouse.” A prenup is not about a lack of trust. Rather, it is about being a good steward of what you have. Stewardship is not simply about finances or property; it is also about your relationship. A prenup by nature is a contract. The beauty of the contractual nature of a prenup is that, barring state rules, you can put almost anything into the document you want, provided that it is not illegal. The reality of marriage is that it is not only one of the most beautiful gifts God gave humanity, but it is also hard work. There are no two, perfect people, and there is no perfect marriage. It is not a question of “if” hard times will hit, it is a question of “when.” A prenup can help prepare you for when those hard times come up. Every human has a pre-disposition towards “fight” or “flight.” Personally, I have a “flight” response. I despise confrontation (ironic for a future family law attorney, I know!) My husband is also, very anti-confrontational. Despite how well we balance one-another out, that’s a bad combination. In fact, Psychology Today™ argues that until we “do the work,” we are doomed to “recycle” our bad habits.[2] For my husband and I, a propensity to flight, nearly ended our marriage. We had to lower our own egos to allow ourselves to be humble enough to do the work. My husband and I do not have a prenup; but we both think that a prenup is a good idea for any couple who is considering marriage, and it is precisely because of our own experience, and how easy it was for both of us to ignore the problems until they exploded, after which a divorce was an easy solution.
Counseling can also minimize your chances of divorce, so a pre-divorce counseling requirement written into your prenup can be most helpful. I don’t mean simply saying “We agree to go to counseling before filing for divorce.” I mean, a detailed, spelled-out disaster response plan. Meet with your pastor, or current couples’ therapist. If you don’t have a couples’ therapist, get one! If you need a recommendation, contact your pastor to find a therapist who has the same belief-system as you and your future spouse. If you are not religious, find a therapist who specializes in couples’ counseling and who has good reviews from current, and former patients. The professional you choose can help you jointly craft a plan that works for your relationship.
Another consideration is to add a requirement that prior to filing for divorce, you both must attend, and successfully complete a Marriage Intensive Program through The Smalley Institute. The Smalley Institute provides a 3-to-5-day Marriage Intensive Program, that is designed to identify issues, and help you and your spouse communicate in a safe space and learn the tools to communicate well at home. The program is usually booked at least 8 weeks out, and it is not cheap, but it is worth the price, and the wait. I do not receive any referral payment, endorsement monies, or other incentive for referring you to this company, but I have seen them save several couples that I know from what even I believed to be an irreparable situation.
By carefully planning how you will resolve potentially detrimental conflicts before you say “I do,” both you and your future spouse can ensure that your marriage has the best chance for survival, and that your relationship actually survives “until death do[es] you part.”
[2]
Bloom, “Do Relationships Really Have To Be This Hard?” https://www.psychologytoday.com/us/blog/stronger-the-broken-places/201204/do-relationships-really-have-be-hard
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