We are brought up on fairy tales where the Prince never asks his betrothed to sign a prenuptial agreement. When couples are planning their wedding plans from caterer to the band and everything in between, bringing up a prenuptial agreement can well be a crushing shock.
Maybe one has been thinking of it all long but afraid to vocalize it. Maybe a close friend plants the thought. Maybe a parent or business partner insists on it. As couples get married when they are older or for a second or third time, each may have assets to protect for themselves or for children of a previous marriage.
Interestingly couples can spend more time selecting the right cake then discussing what may occur if they break up. Given the divorce rate compared to the rate of anyone remembering the cake, it appears quite unbalanced. There is a benefit for both to have a plan then to blindly assume divorce” will never happen to us”. I have been involved in too many divorces where the failure to have a pre-nuptial agreement was disastrous, not just for the outcome, but for the level of animosity and cost that was generated. A well planned discussion and agreement can avoid a very costly divorce if the marriage does not succeed. In fact, it can be protection for both parties.
Creating a pre-nuptial agreement is particularly suited for a collaborative process where there is a commitment by the couple to reach resolution and be supported by professionals who want nothing less than to see them get married. Without a pre-nuptial agreement, who gets what will be negotiated or subject to court order. It will at the very least involve forensic experts who will need to trace assets and liabilities and allocate distribution models. The waters get muddy when contributions are made to pre-marital assets whether in cash or service by one of the spouses. In a collaborative process the parties will fully disclose assets and liabilities as required and then define respective interests for the future with different scenarios in mind. The couple can be creative and not restricted to an approach that may be imposed by a court.
There are basic requirements for any pre-nuptial agreement:
- It must be in writing
- It must be signed by both parties without coercion or duress in front of witnesses
- It must be based on full disclosure
- Each party should be represented by an attorney
- The agreement must not be “unconscionable”.
Finances and property issues are one of the most likely reasons why marriages fail. Why not engage in a genuine conversation before the wedding bells toll to give your marriage the best chance of success? Starting with a difficult conversation may prepare you better for others that may likely come your way in the future.