The case for couples to get (or at least strongly consider) a prenuptial agreement is simple: it is much easier to get into a marriage than it is to get out of one.

A former client once suggested that a checklist should be required when applying for a marriage license. The checklist would be designed to highlight the most impactful provisions of the law when it comes to marriage and acknowledge the person’s understanding that:

• Every dollar you earn may be only one-half yours
• You may have no control over your partner’s spending
• You may have to pay alimony for the rest of your life
• You may owe child support but only see your children half the time, or less
• You will have to prove the assets you brought to the marriage, even if it’s decades later
• And, it may cost you tens of thousands of dollars to get divorced, even if it’s not what you want

How many couples would still want to be married after completing the checklist? Should we make it more difficult to get married or would it be better to do more to educate people as to the legal obligations that marriage entails? Many people enter into the most important contract of their lives — marriage — without an appreciation for the obligations and commitments they are undertaking.

In each state and the District of Columbia, there are laws that govern the dissolution of a marriage, as well as what happens when one spouse dies. But people have the ability to modify the presumptive legal relationship with their spouse through a contract known as a prenuptial agreement.

Whether or not a couple decides to obtain a prenuptial agreement, thinking through the legal and financial obligations that accompany marriage is in each party’s best interest.

What can a Prenuptial Agreement do for you?

A prenuptial agreement can establish different partnership terms and can be tailored to the specifics of the situation. For example, many people want to preserve their existing assets for their children from a prior marriage or prevent having their premarital assets at risk in a divorce. If done correctly, a simple prenuptial agreement can achieve both of those goals.

Whether adult children are trying to protect their inheritance, parents are trying to protect the children of their prior relationships, or parties are trying to protect assets they are bringing into the marriage, the prenuptial agreement process allows partners to make sure they agree upon important financial and lifestyle issues.

Entering into a prenuptial agreement should be a cooperative process rooted in respect, mutual understanding and fairness to each party. It is important for each person to be clear about their goals, as well as the potential future implications of the agreement they are considering. The components of a healthy prenuptial agreement process are as follows:

• See clearly what is at stake. Each party needs to understand the marital law that would apply if the parties did not have a prenuptial agreement. This ensures each party is going into the marriage with eyes wide open and a clear understanding of the deal they are making. 
• Think through the big picture. The partners need to talk through how they will manage finances in the marriage, including whether there are any people outside the marriage to whom they want to leave property when they die. 
• Focus on the future. The parties need to think about and discuss all the possible scenarios for their future financial lives, especially if they hope to have children together or if either party already has children. It is important to consider how life can unfold in unexpected ways that could make the prenuptial agreement disadvantageous to one party or the other.
• Advocate for your interests. Each party should have a lawyer review the prenuptial agreement and provide advice on the short- and long-term implications of the proposed terms. Although the lawyer is obligated to advocate for their client’s interests, they also need to keep in mind that the prenuptial agreement will lay the foundation for the marriage. The prenuptial agreement should honor the dignity and best interests of both parties and strive to establish a positive financial framework that is comfortable for both parties. If not, the prenuptial agreement can be a source of friction that grows over time and negatively impacts the marriage.

Be Proactive About Your Marital Obligations

By providing clarity and certainty as to the financial partnership, a prenuptial agreement can strengthen and bring confidence to a marriage.

Too many people only learn about the legal and financial obligations of marriage when they are separating from their spouse, after it is too late to make smart decisions about their futures. Being proactive about establishing the terms of the financial partnership is a healthy step for anyone contemplating marriage.

For more information about prenuptial agreements and other domestic relations issues, please contact Meg at (301) 841-2434 or [email protected].