Tuesday, April 29, 2008

You Want a Prenup? Don't You Love Me?

"People think prenuptial agreements are the death of romance. But they're an opportunity to tell your partner everything, to broach delicate subjects and expose your respective vulnerabilities. You bare your soul and express an abiding love and trust for one another. What could be more romantic?"
(Atty. Arlene Dubin, author of "Prenups for Lovers")

Arlene Dubin is not only a respected New York family law practitioner and a very good writer; she's also a brilliant marketer. She took something with a notoriously unromantic image and made it the very definition of romance. She also debunks the notion that prenups are just for celebrities and billionaires; she argues convincingly that they make sense for just about any couple with assets acquired before marriage, children from a previous marriage, small-business ownership interests, or the expectation of inheritances. And given that many couples nowadays marry for the first time in their thirties and forties, prenups are not just for late-in-life unions (although they are so compelling in such cases that I would advise older people never to marry without one; I'll tell you why in my next blog article).

The basic principle of a prenuptial agreement is that, as Atty. Dubin puts it, people get to determine their own destiny. A couple can tailor an agreement to fit their own unique circumstances, and even, to some extent, override the laws of their state. If, for example, a couple agrees to a prenup provision that in the event of divorce no alimony will be paid to either party (or, conversely, that a certain fixed amount of alimony will be paid), such a provision would normally be enforced by the divorce court, even if state alimony standards would yield a contrary result.

However, not every clause in every agreement will necessarily be enforced. In particular, provisions related to child custody, support, and visitation (or "parenting time") will ordinarily not be binding on the court, if it appears that enforcing such provisions would jeopardize the welfare of the couple's children, or undermine state child support guidelines.

A court would also reject a prenup that appears to have been the product of fraud or duress. Thus, the "Here, sign this" approach on the night before the wedding is not likely to succeed, nor would a systematic attempt to hide assets, debts, and other potentially-crucial facts from one's future spouse (of course, that hasn't stopped a lot of people from trying).

If you're at all thinking of having a prenuptial agreement, raise the issue first with your future spouse before going to an attorney. Most people would be alarmed or resentful if you consult an attorney in such a delicate matter without their knowledge, especially if they get blind-sided by a letter from the attorney. Pushing too hard or too soon on the legal front can kill your chances for achieving what could have been a beneficial result for both of you.

Of course, at some point legal assistance is a must---please don't try to write your agreement yourself---and I strongly recommend that you each get your own attorney. In fact, most attorneys would probably refuse to represent both parties, even if you're both insisting that you agree on everything and you just need a lawyer to "put it in legal language". Lawyers are, for good reason, sensitive to even the possibility of a conflict of interest.

Having your own attorney allows that attorney to bring up matters you may not have considered, to educate you on what is or is not possible under your state's law, and, if necessary, to come up with a strategy to ensure that your future spouse is fully disclosing all assets. Although having your own lawyer may make the process seem like litigation, it's not. It's really nothing more than healthy negotiation and disclosure, akin to the due diligence you'd perform if you were forming a business partnership or making a major investment (which, of course, you are; maybe the biggest one of your life).