A prenup, or prenuptial agreement, is broadly called a Premarital Agreement in Texas. There are many misconceptions about prenups. They are not just for rich people or those who are marrying rich people. Believe it or not, Bill and Melinda Gates didn’t even have one. They don’t have to be very complex. They can be affordable. And, they are not inherently bad. In fact, prenuptial agreements are based on a pretty simple principle: the power to contract. That’s what a prenup is, a contract; two people agreeing on how property should be dealt with during marriage and upon divorce.
So, why are they so frowned upon by so many? Well, upon consideration, most people agree there are a few reasons why a prenup, or even entertaining the idea, could be a very bad idea:
Prenups Can Destroy or Stress the Relationship
Often one person initiates the idea of a prenup; he or she is the initiating fiancé. The initiating fiancé may have very good reasons to suggest getting one, but the other fiancé may not understand these reasons, or may begin to question the motives of the initiating spouse. Is he being greedy, is he committed to our relationship in the long term, does he really love me more than being rich?
They can be Coercive in Practice if not in Theory
It is true that often people have selfish reasons for wanting a prenuptial agreement. They might want one in order to protect their hard-earned money, retirement, business, etc. When the other party doesn’t have such assets of their own, but wants to benefit from them upon marriage…well, you can tell who has the leverage. Even where a fiancé simply wants to be married without the drama of a contested prenup, that fiancé may put up little fight and agree to a grossly unfair prenup.
In-Law Relationships Can be Destroyed or Stressed
In-law relationships can be difficult in ideal circumstances, and adding a prenup can take them over the edge. Let me give you a scenario: A father-in-law is upset that his son-in-law’s parents insisted and pressured him into requesting a prenup. He instantly thinks less of his son-in-law’s moral compass and less of his own daughter’s judgement. A mother-in-law is pissed that her daughter-in-law forced her son into a prenup, and does not talk to her son or daughter-in-law for years.
Prenups Could Create More Litigation
If a prenuptial agreement is not airtight, you can bet a spouse and his attorney will challenge it upon divorce. This can lead to even more attorney’s fees. Instead of simplifying property division, it can complicate it.
These are valid concerns to consider before entering into or even discussing the idea of such an agreement. They should not be diminished. But, before you say no to the idea of a prenup, please read on.
There are some good reasons to get one, especially if you can alleviate or eradicate some of the pitfalls listed above. A discrete meeting with an attorney (without your bride or groom to be) is a good first step. Consulting a family lawyer is the best way to know if a prenup could be right for you and your relationship.
Part of that meeting will be devoted to getting a better idea of you and your fiancé’s specific financial situation, both now and at points in the future. Another part of the meeting will be devoted to explaining some of the lesser-known aspects of a prenup, which could make it more palatable for you:
Each Side Needs an Attorney and this Can Buffer Some of the Emotions
Though an attorney is not strictly needed for a premarital agreement, when one fiancé gets an attorney, it is always advisable that the other fiancé obtain an independent attorney. In fact, it’s a conflict-of-interest for a single attorney to represent both parties. A lawyer for each side won’t solve all of the issues, of course, but it creates a very high likelihood that both sides will get complete disclosure of finances/property so that both sides can make informed decisions. This gets to the next, often overlooked, aspect of prenups.
It must be Voluntary and Full-Disclosure is Required
Parties can waive a full disclosure of finances and debts, but absent a waiver each fiancé must disclose their property and debts…at least if they want an enforceable prenup. Financial disclosure is important because it puts all the cards on the table and ensures each party can make an informed decision.
This goes hand-in-hand with voluntariness. The prenup must be signed voluntarily. This definition can be a hazy one, which is all the more reason to get an attorney. A family lawyer can ensure that safeguards are put in place to ensure that a prenup is both voluntary and provably voluntary should it be challenged upon divorce.
Separate Property Complications Can Be Resolved
The property and debt you bring into a marriage is deemed your separate property; just like your spouses. When you get divorced, it is still yours, unless you signed an agreement such as a prenup. With this understanding, many couples find it advantageous to address separate property in a prenup.
There can be some noble reasons to address separate property in a prenup. Maybe you want to ensure your children from a different marriage have a nest egg if you were to divorce; a premarital agreement can protect their interests and potential inheritance. Or, you may have a great deal of separate property, and be willing to provide it to your spouse to be, which can actually create trust on the eve of the relationship.
They Can Be Simple and Mutually Advantageous
Prenups don’t have to be one-sided affairs nor complicated. Sometimes, if a couple is marrying later in life, or after multiple divorces, they simply want peace of mind and no drama from the outset. They want to control what happens and to take the judge largely out of the equation.
Other times, it can simply make sense to have a simple prenup on one or two issues. Maybe both sides have a decent retirement when they get married. If they divorce, they don’t want a messy retirement division, so they just agree that each will keep their own retirement.
Prenuptial Agreements are not always a good idea for you and your relationship. But one thing is certain: discussing your options with an attorney, discreetly and without pressure, is always a good idea.
If you are ready to consult with an experienced Tyler family law attorney, request a consultation or call our office at (903) 871-1714.