It may not be the most romantic idea, but many couples planning to marry opt for prenuptial agreements. Even couples who have found themselves in long-term domestic partner agreements are finding the need for pre and post-nuptial agreements. Prenups come into play in divorces, of course, but that’s not all. Besides establishing how assets are divided when a married couple splits up, prenuptial agreements also can determine who gets what when one spouse dies and may also clear the path toward providing for children from a first marriage or a same-sex marriage. Similarly, if there is the expectation of a large transfer of assets, or if assets and/or children are brought from the first marriage, a prenup is a MUST.
Proponents of prenuptial agreements argue that they protect the interests of both parties to the agreement and prevent nasty, costly court battles when a relationship ends. Critics say the nastiness that can arise in negotiating a prenup can cripple a marriage before it even starts, and that there are laws on the books that do a better job in most cases of balancing the interests of both spouses when they split or one dies. Here are both sides of the argument:
YES: It May Not Be Fun, but It Can Save a Lot of Heartache
So, you’re getting married. There is so much to do. You have to pick the rings, the venue and the band. And the lawyer? Unfortunately, that MUST be on your to-do list.
The reality is that many marriages end in divorce, and of those that don’t, 100% end in death. In either case, there are assets to be distributed and conversations must be had – especially if there are assets from before the marriage or even a prior or same-sex marriage involving children. While it is certainly unromantic to discuss and negotiate a prenuptial agreement between the time of your engagement and the wedding, an agreement the requires heart-to-heart discussions about many difficult topics can save a lot of heartache and money when it comes time to distribute those assets.
To be sure, not everyone needs a prenuptial agreement. The most commonly exempt: a young couple getting married for the first time, with little or no assets, who are looking to make a life together and grow their marital estate beginning at the date of their marriage, without expectation of large inheritances or trusts from their families. But with the retirement and passing of the baby boomers, the younger generation is expected to receive the largest transfer of wealth in history – and many ‘elders’ want to see that their kin receive the benefit of their assets. For those fortunate enough to come into a marriage with either assets of their own or the expectation of assets from a trust or inheritance, a prenuptial agreement is a must-have. It provides certainty for both parties and protections that go beyond the laws governing the division of assets.
Share as You Want First, a prenuptial agreement can protect each spouse’s premarital assets from a claim by the other spouse in the event of death or
divorce. In New Mexico and most jurisdictions, assets that one party owned at the time of marriage aren’t subject to a claim by the other spouse in the event of divorce—but any increase in the value of those assets during the marriage may be subject to a claim. Also, in the event of death, even if a party doesn’t make a provision in his or her will for the spouse, state law likely will grant the spouse certain rights to a share of the decedent’s estate.
In other words, if your premarital estate is significant, it makes sense to ensure that your spouse will share in it only as much as you wish should you divorce or die. This is especially true if you have children from a prior relationship whose inheritance you want to protect.
Second, a prenuptial agreement can protect income and assets acquired during the marriage. For instance, without a prenuptial agreement, a party may have a duty to pay support or alimony to the other spouse. An agreement can set that amount—or eliminate it—so it isn’t a cause for litigation and argument down the road.
NO: The Spouse With Less Money Has Only Bad Options
First, lets be clear, Premarital discussions about finances, expectations and money is a good thing. But if the goal of that discussion is a legal, signed prenuptial agreement, the process is fraught with problems and can cause significant damage to a marriage.
Prenuptial agreements do have their uses. They can be crucial peacemakers for couples who marry later in life, especially when there are children from a previous marriage. They can also be useful for same-sex couples where usually only one parents is the biological parent. But in first marriages, especially when the prenup is being forced by the in-laws, they can set up permanent friction between spouses and their families.
Many prenups are unnecessary, overly broad and mean-spirited. These agreements foster marital selfishness, a destructive force for the couple and their coming marriage. Often, particularly in first marriages, the less-moneyed spouse is contracting away economic marital rights without even understanding what marriage entails. You have to be in a marriage for the long term before you really understand what it means.
In the end, many prenups weaken the marriage by causing an imbalance in the financial security of the two partners. Married couples should
protect each other by being fair and generous in all ways, including financially. So for most couples, having a negotiation about withholding property isn't a very good way to begin a relationship that should be built on love, trust, mutual protection and generosity. You know that adage, “love is money”? It’s true. You can express love by caring for someone financially.