Prenuptial Agreements: Not Just For Trumps

Can you imagine what marriage used to be like in the old days? You went to high school, met your sweetheart, got married, stagnated in a middle management job, if you were lucky, had an affair with your secretary and settled into old age with your spouse, whether you liked them or not? Sure, men carried the sole responsibility of providing for a family on their shoulders while women’s souls atrophied with their lack of options, but at least we knew what was expected of us. There was one kind of committed relationship--heterosexual marriage--and the laws were clear, if unfair, because everyone was supposed to be on the same page.

Now it seems that every relationship has it own definition and its own parameters that can fall very close to, or just as far from, a traditional definition of a marriage relationship. As laws struggle to keep up, many find that they need additional legal support. Marriage laws were originally shaped by a view of marriage that said: you marry once, any children you have are expected to be within that one marriage, and any and all assets you have are shared with your spouse. With the advent in the last 30 years of blended families, later marriages and equal assets between spouses, prenuptial agreements have grown increasingly commonplace.

Do I Need A Prenup?
It used to be that prenuptial agreements were for the rich and famous, protecting their massive accumulations of wealth and property from greedy gold diggers. Perhaps that’s where they got their bad name. Now, more and more people are considering signing prenuptial agreements before they join their life to that of their future spouse. Previously, the most popular reason to sign a prenuptial agreement was generally because one or both of the individuals had been married before, had children from that previous marriage, and wanted to make sure that their children got their rightful inheritance on the occasion of their death. Now, there are many reasons to sign a prenup, including the following:

You have a family business that you would like to keep in your birth family on the occasion of your death or the dissolution of your marriage

To protect any pre-marriage assets you accumulated, including property, your pension plan, stock portfolio, and family heirlooms or property

To protect each other from prior debt (to limit your liability with creditors for your spouse’s pre-marital debt)

To support your will

To keep assets and finances separate

To make agreements for supporting each other through schooling
A prenuptial agreement can do several other things for you as well, including outlining how financial responsibilities will be divided within the marriage. This can include whether or not you will have joint accounts or credit cards, if you will file your taxes separately or jointly, how you will handle savings, and even how you will handle legal disagreements in the future (arbitration, mediation, etc.)

Some experts suggest that you can include non-financial responsibilities in the prenup as well, but opinions are divided on this issue. Personal issues such as name changes, issues about having and raising children, relations among family members, and division of labour within the family home cannot go in the prenup, and other personal issues will probably dilute the effectiveness of the prenup. This is simply because courts might not take a prenup that is littered with what they might consider non-legal issues as seriously as one dealing strictly with financial matters.

In order to write a prenuptial agreement that has the best chance for standing up in court, first sit down together, well before the date of your wedding, talk frankly about finances and draft an agreement. Once you have drafted the agreement, each of you should take it to a separate lawyer to have it looked over. This is an important step for future courts to recognize the validity of the document. A court might set aside a prenup if the document is seen to promote divorce (for example, by providing incentives such as large alimony payments) or is seen as being made with the intention of divorcing. Finally, if one party has not fully disclosed their assets and debts at the outset of the prenuptial agreement, the document could be useless.

There are certain things that you cannot do with a prenuptial agreement:

You cannot agree to do anything that is illegal.

You cannot sign away your parental rights of visitation, support or custody.

You cannot regulate the behaviour of your spouse within the marriage with the prenup.

In some states, you cannot give up your right to alimony.

Broaching The Topic
One of the biggest obstacles to bringing up the issue of signing a prenup is exactly that: bringing it up. You can never be sure how your fiancée is going to react to the conversation. Many find the topic objectionable because they have a notion that it ruins the romance of the engagement and wedding, and some feel that it presupposes the possibility of divorce before the marriage has even happened, placing a cloud of doubt and gloom over the entire ceremony. This conversation is a serious one, and if you have any concerns about what is listed above, then you should certainly discuss these issues before you think of walking down the aisle.

Perhaps broaching the topic of money does not have to start with “I think we need a prenuptial agreement.” Every couple should sit down and talk about their concerns, fiscal philosophies, and financial plans, assets, liabilities, and expectations. If you have very different ideas about credit and debt, then you need to discuss this before the marriage so that it doesn’t put undue strain on your union. Even if you do not end up signing a prenup, having this frank conversation about money and finances is wise in that it establishes each person’s expectations about money and property from the outset, so that there are no misunderstandings.

If you are on the fence about bringing up a prenup with your spouse-to-be, check out your province/state’s divorce laws. They have come a long way in recognizing the transformation of relationships as well as the equalization of financial responsibility between the genders, and they may just offer you ample guidelines to set your mind at ease. If the issue is still nagging at you, but you don’t feel that it is the right time in your relationship to bring it up, there is also the possibility of signing a postnuptial agreement (which carries with it stricter legal rules, but is still an option).

Whatever you decide, sitting down and having an open and honest discussion about money, debt, and assets is an important step in readying yourself for the commitment of marriage. If you are having troubles discussing this, now is a good time to see a pre-marital counsellor to get things out in the open. If you cannot discuss your finances frankly and openly, then you might need that prenup sooner than you think.