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You've met Mr. or Ms. Right. You've been dating for quite a while, and you have decided to take the leap into this wondrous world we call marriage. You are both so excited, thrilled, dreaming and talking about the wedding, the dress, the honeymoon. Every once in a while, a "hot" topic comes up, like how many children will we have, what about religion, will one person work or will both have careers. You are navigating through all these big issues just fine and then BOOM! Your mate, your love, the father/mother of your future children, the person you want to spend the rest of your life with, asks you to sign a Pre-nuptial agreement.
Shock, confusion, panic sets in. If we do a pre-nup, doesn't that mean we are already planning out divorce? Does that mean there are doubts? Does that mean you don't trust me? How can we go forward in our marriage if you are thinking about our divorce? If the foundation of a good relationship is trust, then aren't we already in trouble?
These are all valid questions. However, if you have been married before, or if you have an unequal amount of pre-marital assets, it is not unlikely that the thought, if not the conversation, has already been breached. In fact, most people discussing pre-nuptial agreements are older, have already been married and divorced, have been around the block a few times, are wise, logical, and understand that pre-marital assets should remain pre-marital. Even though all this is true, the request for a pre-nuptial agreement is still so emotionally charged!
You might be surprised to learn that although we hear more about pre-nuptial agreements these days, they have always been around. Remember Dowries? Many cultures had dowries which served as a marital contract of sorts. And, for over 2000 years, the Jewish culture has a contract called a Ketubah, which outlines the marital agreement and what would happen if the husband left, in other words, what does the wife get?
In the 21st century, with the nearly 40-50% divorce rate for first time marriages and near 70% for 2nd marriages, the logical part of us knows that it is possible we may be part of those statistics. Yet, the emotional in love forever side can't even fathom thinking about divorce. If you find yourself spending more time planning your wedding day than discussing substantive issues about how to resolve issues in the marriage, you just might be in trouble. A Pre-marital coaching or counseling program is a great prescription to help you develop a firmer foundation upon which to build your marriage.
In America today, financial problems is the number one cited reason for divorce, with sex following closely behind. However, while we understand that finances are the number one issue leading towards divorce, we do NOT fully discuss the painful reality of our differences, nor do we come up with agreements to deal with our differing attitudes towards money. I love the idea of having a Marital Agreement in which you discuss all your agreements and how you will deal with your differences DURING the marriage. In this regard, there are 2 wonderful books I recommend. First, Mastering Marriage by Charlie Michaels and Mike Brown, gives you thousands of questions in a well organized format to discuss and upon which to base marital agreements. The second is Money Harmony by Olivia Mellon, which helps you to explore what makes you and your partner tick vis a vis money and finances, and how you can understand where each other's attitudes and values regarding money come from, and how to best mesh these different perspectives.
So, we are back to the question, if you do your work and understand each other's financial outlook, if you trust and love each other, why should you have a pre-nuptial agreement? BECAUSE you do trust and love each other! There is no better time in your relationship to plan for a fair, non-negotiable, less emotional divorce than when you are truly madly in love with each other. I know this seems like such a paradox, but from a logical and legal point of view, the time, emotional and financial expense is greatly reduced if you take care of all of this on the front end. And if you do have children, you will not spend their college funds on divorce attorneys as so many people end up doing.
This is what a typical divorce case looks like when you do not have a pre-nuptial agreement. Dan (48) and Jackie (47) have been married 16 years and have 2 children, Ryan age 12 and Danielle age 9. Jackie also has a child, David, from her previous marriage. David is in college but still lives at home with Jackie and Dan. Jackie basically lost everything in her divorce from her first husband, but was awarded custody of David plus $600/month child support. When she and Dan met, she was working as a receptionist in a Doctor's office, earning $1600/month. Dan had never been married, earned approximately $8,000 per month as a business consultant/trainer, and he owned his own home, which Jackie and David moved into. He told her it was her home too. They discussed a pre-nuptial agreement, but Jackie was very emotional over it, fearing she would end up again, without anything and she was fearful that he really didn't love her like he said he did. A few years into the marriage, when she got pregnant with Ryan, they decided she would quit work and stay home with the children. About 4 years ago, after Danielle started school full time, she started her own multi-level marketing business, earning about $500 per month. Now, they are getting divorced.
Going through a divorce, they are bitter and angry with each other. There is no trust. Dan says his house is his, because he owned it before they married. Jackie said he promised her it was her house too, she trusted him so didn't have him put her name on the deed. She designed an addition to the house, painted the rooms, re-decorated everything, made the yard and garden beautiful. This is where she raised her children. She says she was home taking care of the home and children, so Dan could grow his business. He now has 6 employees and grosses $15,000 per month. She wants part of his business and some retirement as well as spousal support and the house. She never went back to school and does not have a career, and in fact, she doesn't even have computer skills! Their marriage is not quite long term for purposes of indefinite spousal support. This couple can easily spend $40,000 or more on attorney fees and the outcome is very uncertain!
About 20% of previously married people are choosing to go with pre-nuptial agreements, precisely because of their past experience with divorce. These people recognize that marriage is just like a business partnership, you have an agreement to get into it, you should have an agreement about how to run the business, and an agreement to get out of it. Look at it this way: healthy boundaries, clear and explicit boundaries make the BEST relationships. When you love your children, you set boundaries. Yet, you are scared to talk this honestly upfront. It is easier to stay in la la land. This is why I suggest getting a mediator involved. Here are eight guidelines for putting together your prenuptial agreement and saving your relationship.
1. Remember, you are in charge of the process. You must outline for the mediator that you WANT to stay together and have a good relationship at the end of the process. Ask the mediator to help you understand each other, not just get an agreement signed.
2. Before and after each negotiating session, remind each other why you love each other and do something fun and supportive.
3. Accept that this brings up strong feelings and support each other through the process. In other words, put yourself in your partner's shoes.
4. Know your partner now. Your money differences might be huge. Use this process to learn about why he/she wants to keep everything and give you nothing. What is behind this? Remind yourselves to be generous with each other. Be your best self also during this process. Treat your partner how you would want to be treated.
5. Use this as an opportunity to also come up with other agreements, such as wills, power of attorney, health care directives, and insurance policies. In other words, how will each of you be taken care of after death? This is not typically in a pre-nuptial agreement, but it is allowed and certainly can be in a "marital agreement" document.
6. Use a mediator who knows the system. For example, if one person wants all the assets, makes all the income, and wants to leave the other person dependent on the state, she will be able to tell you that the court will not uphold such an agreement as being against public policy. She can also tell you what the courts would see as fair.
7. Think outside the box and be creative. For example, a divorce after 5 years would look different than a divorce after 20 years. You may construct your agreement to increase proportions of the marital estate division with the length of your marriage.
8. Once the agreement is complete, notarize it and make sure you each have a copy; the mediator has a copy, and put it away and forget about it. Go about the business of having a great wedding, celebrating your love and future with family and friends, and trust each other knowing that your foundation is stronger than ever.
Can you see how just going through this process can make your marriage stronger, how setting boundaries and outcomes gives you a firmer foundation upon which to build that happy life together? You want a great relationship, don't go into it with a "la-la-la we're so in love so everything will be great" attitude. Know that marriage is a business proposition, in fact, the most important deal you will every make. So make it a sound, solid, secure one...and then allow love to guide the way.
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