There’s nothing like the mention of a prenuptial agreement to swiftly rob newly engaged couples of their “happily ever after” high. Granted, it may not be the most romantic way to kick off wedding planning, but according to Regina DeMeo — a divorce attorney based in Washington, D.C. — prenups are seeing a surge in popularity, particularly among millennials.
Once reserved for trust fund babies or millionaire moguls, prenuptial agreements are becoming more common for young, less-established couples, says DeMeo, especially in the aftermath of the Great Recession. She’s not alone in her observation. According to the most recent survey by the American Academy of Matrimonial Lawyers, 63% of divorce attorneys reported the same uptick in prenups. The reason? “Couples have a more protective attitude to preserving assets that they’ve accumulated on their own,” DeMeo says. “I used to get maybe one couple a month. Now I get calls twice a week. And the couples are from all walks of life — even though some may only have debt, they’re thinking forward.”
It may feel like a difficult topic to broach, but having a prenup doesn't have to take the magic away from your marriage or put an expiration date on your relationship. Rather, think of it as a seatbelt, DeMeo says. “You don’t expect the car to crash, but if it does, you’ll be glad that protection is there.”
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Why To Get One (Even If You're Broke)
While the prenup trend may be on the rise, it’s important to evaluate whether it’s truly the right choice for you and your future spouse (and the go-to response from experts is largely that “it depends on the couple"). However, don’t discount a prenup just because you don’t have many assets yet — remember, that will change over time — or have fewer assets than your future spouse. In fact, a prenuptial agreement may actually benefit the less wealthy party in some cases, says Ann-Margaret Carrozza, a New York-based attorney. “It’s often quite the opposite that the prenup favors the wealthier party. If there’s a partner who has given up career advancement possibilities, they need to be made whole in the event of a breakup,” she says. “A prenup is actually very important for the less-wealthy partner, because they will have more catching up to do financially if the marriage doesn’t work out.” Even if all you have at the moment is debt, it’s also important to consider what your future earning potential will be, says DeMeo. If you have aspirations to own your own business, as she did, or start your own practice, you have to consider whether you’d be willing to lose half of what you’ve established to your ex-husband or wife. In the long run, it can never hurt to at least explore your options.
While the prenup trend may be on the rise, it’s important to evaluate whether it’s truly the right choice for you and your future spouse (and the go-to response from experts is largely that “it depends on the couple"). However, don’t discount a prenup just because you don’t have many assets yet — remember, that will change over time — or have fewer assets than your future spouse. In fact, a prenuptial agreement may actually benefit the less wealthy party in some cases, says Ann-Margaret Carrozza, a New York-based attorney. “It’s often quite the opposite that the prenup favors the wealthier party. If there’s a partner who has given up career advancement possibilities, they need to be made whole in the event of a breakup,” she says. “A prenup is actually very important for the less-wealthy partner, because they will have more catching up to do financially if the marriage doesn’t work out.” Even if all you have at the moment is debt, it’s also important to consider what your future earning potential will be, says DeMeo. If you have aspirations to own your own business, as she did, or start your own practice, you have to consider whether you’d be willing to lose half of what you’ve established to your ex-husband or wife. In the long run, it can never hurt to at least explore your options.
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Think of a prenup as a seatbelt, DeMeo says. “You don’t expect the car to crash, but if it does, you’ll be glad that protection is there.”
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“Having a prenup is good overall, because you know what you’re getting into. I think it’s educational and I think the less-moneyed partner needs to understand these things,” says Emily Jane Goodman, a lawyer and retired New York State Supreme Court Justice. “It’s unrealistic to say everything is going to be wonderful. Things happen. People fall out of love, meet new people, all sorts of things can occur...Have the protection you should have and then put it away and hope it doesn’t ever come up."
At the very least, talking about a prenup also forces you to have a conversation about money, which could potentially protect your future marriage, as arguments over finances are one of the biggest indicators of divorce.
“People spend all this time planning a wedding and they’re not thinking about how to avoid problems in a marriage,” says Sandy Arons, founder and president of Arons & Associates Divorce Planning and Lifecycle Financial Fitness. “The biggest way to avoid future marriage problems is to talk about money. If a couple starts with that kind of approach, it makes for a healthy progression into marriage.”
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What To Watch Out For
One of the biggest prenup-related mistakes couples make is putting it off until weeks — or worse, days — before the wedding. Goodman’s rule of thumb: Have the prenup talk when you’re discussing whether you’re going to keep or change your last name and other important issues, preferably months in advance of the big day. In fact, waiting to draft or sign a prenup too close to the wedding could actually invalidate your agreement, says Carrozza, who had a judge throw out a prenup when the woman admitted she signed it a week before the wedding because her fiancé had threatened to call it off if she hadn’t. Also, be sure to hire separate representation for each party (not doing so could also invalidate the agreement, notes Carrozza). And if you’re the less-wealthy party, don’t go with someone your fiancé or fiancée recommends. Instead, find your own lawyer — one who specializes in prenups — and pay the fees yourself. “You don’t want your lawyer to be beholden to your partner,” advises Goodman. Finally, agreeing to “sign anything” simply to be done with it is the worst move you could ever make. Fault, such as infidelity or abuse, may become irrelevant to the economics of support or distribution of assets between the parties when going before a judge. But if there is a prenup, those issues will have already been covered before things soured. “It’s very hard to overturn the terms you’ve agreed to...and most don’t realize that you have to prove fraud, undue pressure, or violations of public policy to do that, which is a very difficult thing to do,” says Goodman. According to Goodman, all 50 states now have what’s called “no fault divorce.” Fault grounds, such as infidelity or abuse that caused the marriage to unravel, may become irrelevant in court or in negotiating support or distribution of assets. If there is a valid prenup stating what happens in the event of a divorce, it is binding in court. In other words, for better or worse, there is certainty.
One of the biggest prenup-related mistakes couples make is putting it off until weeks — or worse, days — before the wedding. Goodman’s rule of thumb: Have the prenup talk when you’re discussing whether you’re going to keep or change your last name and other important issues, preferably months in advance of the big day. In fact, waiting to draft or sign a prenup too close to the wedding could actually invalidate your agreement, says Carrozza, who had a judge throw out a prenup when the woman admitted she signed it a week before the wedding because her fiancé had threatened to call it off if she hadn’t. Also, be sure to hire separate representation for each party (not doing so could also invalidate the agreement, notes Carrozza). And if you’re the less-wealthy party, don’t go with someone your fiancé or fiancée recommends. Instead, find your own lawyer — one who specializes in prenups — and pay the fees yourself. “You don’t want your lawyer to be beholden to your partner,” advises Goodman. Finally, agreeing to “sign anything” simply to be done with it is the worst move you could ever make. Fault, such as infidelity or abuse, may become irrelevant to the economics of support or distribution of assets between the parties when going before a judge. But if there is a prenup, those issues will have already been covered before things soured. “It’s very hard to overturn the terms you’ve agreed to...and most don’t realize that you have to prove fraud, undue pressure, or violations of public policy to do that, which is a very difficult thing to do,” says Goodman. According to Goodman, all 50 states now have what’s called “no fault divorce.” Fault grounds, such as infidelity or abuse that caused the marriage to unravel, may become irrelevant in court or in negotiating support or distribution of assets. If there is a valid prenup stating what happens in the event of a divorce, it is binding in court. In other words, for better or worse, there is certainty.
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How To Bring It Up Without Offending Your Partner
Who really wants to be the one to initiate a “Hey, let’s get a prenup just in case this doesn’t work out” conversation? It’s not exactly the most comfortable talk to have, especially if the other person isn’t open to it. But there are some ways you can approach the subject without having it morph into a raging argument.
For starters, DeMeo suggests making your reasons for wanting a prenup very clear. In her personal experience, her husband was more open to moving forward with a prenup when he understood that it was to protect her business and her son, she says. (Terms about children who are not yet born, however, violate public policy and do not belong in a prenuptial agreement.)
Carrozza also suggests introducing a prenup within the context of a “love contract.” Rather than simply focusing on money, the couple devises a joint mission statement that touches upon their future lifestyle, health, family, and financial goals. “A prenup is easier to digest if it’s part of a broader life plan, rather than coming at them with, ‘I get to keep what I have, sign it, or I’m not marrying you,’” she says.
Ways To Protect Yourself Without A Prenup
If you haven’t signed a prenup, the good news is that there are some ways to protect yourself should the marriage end. As a financial divorce planner, Arons recommends making photocopies of all of your accounts prior to getting married (including your retirement, checking, and savings). “This way, there’s proof of what’s been brought into a marriage,” she says.
Another thing to consider: Instead of combining your retirement and investment accounts, open up new ones once you’re married while continuing to maintain the pre-marital ones. “You don’t want to mix new marital money with premarital money,” says Arons. “If you just start a new account, there’s no discussion as far as what’s premarital. That’s the cleanest way to keep track of your assets, just in case.”
In addition to your assets, also take note of your debt and any payments you’re making toward your spouse’s debt. “You’ll want to keep track of education loans, credit card debt, and any back taxes before your marriage, as well,” says Arons. “That way, if you get married and pay off $10,000 of your spouse’s loan, you’ll have records of that.”
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Agreeing to “sign anything” simply to be done with it is the worst move you could ever make.
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The Lowdown On Postnups
If your marriage is struggling, but you’re willing to give it one more shot, a postnuptial agreement could be useful, especially if one spouse has been unfaithful.
“In the event of another future infidelity, the offending party may agree in the postnup to pay a large financial penalty,” says Carrozza. “This can be used to give the marriage another try while taking care of the aggrieved party financially if it doesn’t work out.”
A postnup can also be useful for estate planning and protecting children, says Carrozza. Although unborn children can’t be mentioned or protected in a prenup, there are some ways to ensure they become included in a postnup. For example, you could say in the prenup, “If we have children, we will review our estate planning, talk about obtaining life insurance, and revisit the alimony waiver,” and then make the necessary changes in a postnup once they’re born, says DeMeo.
And while a postnup won’t protect your premarital assets like a prenup will, the added beauty is that you can make ongoing changes to a postnup (assuming you’re comfortable with continuing the “just in case this doesn’t work out” conversation).
“Post-marital agreements are unlimited,” says Goodman. “You can keep adding post-nuptial agreements for as long as you wish into the marriage — and especially as you keep acquiring assets.” These may include such new issues as agreeing not to talk about each other publicly or to include certain commitments in your wills.
No one goes into a marriage with the expectation that it will fail. You don't buy a house expecting it to burn down, either, but that doesn't mean you shouldn't insure against fire. If you're both entering the union for the right reasons, then you should be able to have a conversation about the what-ifs, even if it's awkward and uncomfortable. If you never need the prenup, great; all you will have lost is a one-time lawyer's fee, which is fairly minuscule in the scheme of things. But if anything does happen — be it in five or 50 years — you'll be glad that all your bases are covered.