When approached correctly, a prenuptial agreement can be introduced and discussed rationally. Sharing with your intended spouse the benefits and practicality of having one in place should be your strategy as you begin to broach the subject.
An opener might start off with the mention that a marriage license is a contract, and like with any other “business” contract, most are in place to protect both parties and to delineate the “terms” of the contract should the business fail.
Granted, you don’t want to point to disaster when you are euphorically in the wedding planning stage, but it’s important to separate the fantasy of that “big day” planning from the practical and sensible side of what you also need in planning, just in case. Remember: You certainly wouldn’t venture into any other contract (buying a house, starting a business, purchasing a car, without a formal agreement. Binding with a partner (spouse) is very much the same idea. So, take your head out of the wedding cake for a minute and get down to the business side of your union. You really have nothing to lose by doing so. If things go sideways, you will have everything to gain. Through the entirety of your marriage (and I hope yours goes the distance) more than anything, you will always maintain peace of mind.
In this Part 3 of the six-part series on prenuptial agreements, I’m offering the points below to help you become better informed about prenuptial agreements and why and how to put one together. Moreover, these tips will give you guidance on how to approach your intended and help him/her/they become informed about one along with making that person feel comfortable.
How to Approach the Subject of a Prenuptial Agreement
1. Everyone married in California and many other states in the country already has a “Prenuptial Agreement.”
California state law — referred to generally as California Community Property Law — will typically decide what is each person’s separate property, community property, alimony, and certain inheritance rights. The bottom line is this: Everyone who marries already has a built-in prenuptial agreement. Unfortunately, the laws are not always black and white. They are convoluted and complex which can result in unknown and unintended consequences. A prenup is designed to be specific as to who has entitlements with certainty. In this contract, there is no question as to who is entitled to “what.”
2. Start the prenup process early.
All too often, one party drops the idea of a prenuptial agreement on the other party’s lap unexpectedly, and at the last minute. Many people react differently. They often need time to process the idea and become educated about what constitutes a prenuptial agreement.
They need time to talk with others about why it would benefit them to have one, gather his/her/their list of what they wish to call out and safeguard in the agreement, and seek assistance from trusted advisors. Suggest to your partner they he/she/they take their time to accomplish these tasks. That way they won’t feel pressured or coerced. Starting early is a diplomatic and wise move, especially for those who seemed surprised. Task your mate with examining why they should have a prenup in place. That helps to persuade your soon-to-be-spouse that they should protect their individual assets. Perhaps they own a business, they want to protect his/her/their business partners, family real estate holdings, or a retirement account they spent years building. If they have been divorced previously and experienced loss over an unfavorable court ruling in determining assets, such an agreement can offer them assurances that they won’t have to experience the same misery again should worst case scenario occur.
3. Choose your timing and level of discussion wisely.
Friday night after a long, hectic week when everyone is tired is probably not a good time for you to discuss the terms and conditions of your ideas for a prenuptial agreement. One you present the idea of this type of an agreement, come together on a deadline for getting everything prepared for your joint discussion. That would include assembling your list of assets, your questions, and your points of discussion.
The date and time for getting this done should be set well in advance of the wedding. It’s not prudent to ask for this discussion two weeks before the wedding. It should be brought up and the date set once you are engaged. Allowing three to four months is a good idea. There may be some negotiating needed and time to make your list and confer with others. Set a time limit if you need more than one discussion session. This is one more reason to start early. Sometimes it takes a while to agree to the terms of a prenuptial agreement.
4. Seek balance: It is NOT “all-or-nothing,” and DOES NOT have to be “all-or-nothing.”
Tailor the prenuptial agreement to meet your needs, while also seeking to meet your partner’s needs. The agreement does not have to be “all-or-nothing.” Maybe you two want to keep all your retirement plans as separate property during the marriage and let California community property law apply to everything else. Maybe you want to pay alimony by the standard formula, but want to cap the maximum length of payments. Disclose what the top two or three “must-haves” are for you and ask your soon-to-be-spouse what theirs are in order to be fair. Ask your partner what it is they are most concerned about protecting. Ask yourself the same questions. Focus on those concerns. Also, remember there are always several ways to accomplish objectives. Should one objective seem offensive, talk through a potential solution, or note the impasse with your respective attorneys. Through that process, you are likely to come up with a balanced solution. This is an important exercise because you are about to enter into a partnership. All partnerships require compromise. If you can’t resolve this issue, it is certainly a red flag for the relationship.
5. Consider mediation to resolve tough issues.
If you start the discussions about a prenuptial agreement early and the communication lines are open, you and your soon-to-be spouse should be able to resolve most issues. If there are one or two points you cannot agree upon, and your lawyers can’t help you figure them out, consider mediation. A neutral third-party mediator can help facilitate discussion and assist with options to help you and your intended spouse work toward an agreeable solution. Mediators are good at helping parties to see and understand both sides.
6. Nobody is absolutely locked in – people can change the prenuptial agreement by mere consent
Nobody is locked into the terms of the prenuptial agreement, nor should the prenuptial agreement be put away and forgotten. If your life circumstances change significantly, or both you and your soon-to-be spouse both have a change of heart on a term in the agreement, you can revise and amend it. An amendment to any prenuptial agreement needs to be in writing and should be completed by an attorney to make sure the parties’ intentions are accurately reflected. Make sure the changes do not impact any other sections of the prenuptial agreement. Should things go sideways in the marriage, you don’t want added stress because he or she or they had legal counsel and you didn’t.
Both you and your intended spouse must have separate legal counsel. Typically, one will draft the agreement based on what you and your partner have given the attorney in the way of stipulations, but each of you should have independent counsel review it before it is signed. Once drafted, the agreement can be taken to the other attorney for review and comment. Once again, keep in mind that your marriage is not only sealed with a kiss and a marriage license; it’s a binding contract.