Not everyone getting married enters into a prenuptial agreement, or prenup, but many do. The reasons vary, but most often it comes down to this: one spouse (or his or her parents) has significant assets entering the marriage and wants to preserve it as separate property during the marriage.
Sometimes one person is quite motivated to sign a prenuptial agreement, but the other is not as enthusiastic, or even reluctant or opposed to the idea. But once the subject is raised, and especially if one person insists that a prenup is necessary, the reluctant fiance faces a dilemma: Will our engagement end if I say no? Will my fiance cancel the wedding if I refuse to sign?
A fine line between coercion and reluctant consent
It is important not to be coerced into signing a prenup. If you sign a prenup under duress and coercion, you may have a basis for challenging the agreement in court later on. In fact, if one party has an attorney and the other signs without consulting a lawyer, a court could overturn a prenuptial agreement in the future. This is especially true if the agreement is drafted and signed close to the wedding date.
Financially lopsided from the beginning
Many people who sign a prenuptial agreement, then divorce later on, say that during the marriage the prenup made them feel they were never on an even playing field financially. A prenup can cause resentment and suspicion that your spouse is not committed to making the marriage a true partnership. Or that he or she is more concerned about keeping money separate than creating marital property and building your marriage. Instead of creating financial stability, a prenup can drive a wedge between a couple, displaying one person’s protective and secretive attitude about his or her separate property, and making the other person feel threatened by such behavior. Conflict develops and the seeds of divorce are sown.
You may feel disadvantaged in a prenup negotiation
Pressure to sign a prenuptial agreement can be subtle. Sometimes the person who is not pushing for a prenup wants to please his or her fiance by finalizing and signing it quickly, without carefully considering how the terms could affect him or her in the future. If this is you, you may feel at a disadvantage in the negotiation process—that you have no right to challenge how your fiance wants to handle his or her own money. But remember that all money earned during the marriage is marital—and therefore belongs to both of you. If you are the spouse who earns less, or may spend time at home caring for children, you may need spousal support if you divorce. A new study shows that most women who have children when they are 25 to 35 years old never recover from the pay gap that results with their husbands, even women who earn more than their husbands when they get married. With these concerns, you should not waive support (also called maintenance or alimony) in your prenup, even if you earn enough money to live on right now.
Sometimes the person pushing for a prenuptial agreement hires a combative attorney whose first draft is complicated and unfair. For the best outcome, you each need an attorney who will stand up for you, but work cooperatively with the other attorney. You need to feel like an equal partner for the marriage to succeed.
Tips for negotiating a fair prenuptial agreement
Despite all this, under the right circumstances a prenup can be a useful, even positive, document for a married couple. Here are some guidelines:
- Make sure each party has an attorney of his or her choosing. No lawyer may represent both parties in preparation and execution of a prenuptial agreement.
- Choose attorneys who emphasize a collaborative (not combative) approach.
- Use the opportunity to discuss your attitudes about money with your fiance (saver or spender)? Try to develop a common approach to marital finances and financial goals.
- Give the prenup priority as you prepare for your marriage. It is far more important than the decorations, caterer, wedding gown or honeymoon.
- Read before you sign! A prenup can be a difficult legal document to understand and absorb. Don’t be afraid to say, “I don’t understand this provision” or “This is complicated. I need a simple agreement.”
- Don’t delay. If you are going to sign a prenup, give yourself several months to discuss and finalize it. Don’t wait until two months before the wedding.
- Be honest. If you know in your heart you cannot sign a prenup—that you and your fiance are not on the same page—don’t sign the agreement. You have lots of time and opportunity to revisit the matter after your wedding, when you can negotiate and sign a post nuptial agreement that has the same effect as a prenup.
- If your fiance issues an ultimatum (“I will not marry you unless you sign a prenup”), consider whether this is the right marriage partner for you.