FIVE COMMON MYTHS ABOUT PRENUPTIAL AGREEMENTS
Published in
Fall 2018 Issue
A prenuptial agreement (commonly referred to as a premarital agreement) is a contract people enter into prior to marriage that establishes the essential property and financial rights of each spouse in the unfortunate event of a divorce. If you are engaged and trying to learn about premarital agreements, you may get advice and opinions from friends, family members, your hairstylist, or someone at work. Unless you have talked with a prenuptial agreement lawyer, there’s a pretty good chance that some or all of what you have heard about premarital agreements is just plain wrong.
Myths and misconceptions about prenuptial agreements can cause smart people to completely reject the entire notion of a prenup while planning their wedding. Whether to enter into a prenuptial agreement is a critical planning issue that should be considered by every marrying couple, so it is important that your decision is not based on bad information. That is why it is a good idea to speak with a competent prenup attorney who can dispel the myths, answer your questions, and help you determine if a prenup might be a good idea for you during the early stages of your wedding planning process.
Here are five common myths and misconceptions about premarital agreements that are widely spread and believed, but are simply not true:
MYTH
ONE
SIGNING A PRENUP MEANS NO ALIMONY, EVEN IF YOU QUIT YOUR JOB TO RAISE A FAMILY.
Some people fail to consider the many benefits of entering into a premarital agreement because they have heard that the only purpose of a prenup is to avoid alimony. They fear the possibility of being left with no financial support if their spouse asked for a divorce, especially if they decided to forego future career advancement and earnings to raise children or to provide some other benefit for the family. These concerns are reasonable, but it doesn’t have to be that way and it’s time to bust this myth.
Contrary to Myth #1, you can actually use a prenup to guarantee either spouse a minimum amount of alimony, so that each party knows their “worst case” scenario in the event of a divorce. Many couples who agree on pre-defined alimony payment terms in their premarital agreement enjoy a peace of mind that enables them to embark on the wonderful rollercoaster of marriage with more confidence, optimism and excitement because they know that they will be on the same page during even the toughest of times.
For the most part, a marrying couple can freely discuss and agree to whatever alimony terms make them comfortable to enter the marriage with confidence and peace of mind, given their personal situation. You and your fiancé can agree on no alimony at all, some fixed or sliding amount of alimony, payments for a defined period of time or until a triggering event—the choice is yours. It is also important to understand that a prenup can be amended (in writing) to provide for alimony payments at any time after marriage to reflect changed life circumstances, such as a situation where one spouse quits or reduces work for the collective good of the family unit. Spouses can also agree to just terminate a prenuptial agreement in writing at any time during their marriage, for any reason at all.
MYTH
TWO
COUPLES WHO REALLY LOVE EACH OTHER DON'T NEED TO CONSIDER A PRENUPTIAL AGREEMENT.
This second myth reveals the blinding power of love and is often manifested when intelligent adults naïvely dismiss the idea of a prenuptial agreement without due consideration because “no way … that won’t happen to us”. Life is more complicated these days, and couples who are really in love should plan for marital bliss and longevity while acknowledging the reality that fairy tale endings don’t always happen in modern society. Analysts and attorneys have estimated that up to 50% of first marriages end in divorce, and that number climbs to an estimated 60-67% failure rate for second marriages.*
Smart, responsible adults routinely prepare for disasters as an obvious part of their everyday lives, but they generally protect against catastrophic events that have a small chance of occurring (fires, floods, auto accidents, etc.). For instance, the lifetime odds of dying from a lightning strike in the United States are 1 in 161,856,** and most adults probably have an insurance coverage at some point in their lives for the catastrophe of death by lightning. Think of a prenup as sort of a “premarital insurance policy” that can help minimize the overall losses sustained by both partners in the event of a marital catastrophe. It may be the least enjoyable part of planning your wedding, but with national marital disaster statistics estimated at 50% or higher, even those hit the hardest by Cupid’s golden arrow would be smart to at least consider a prenup.
*See also National Health Statistics Reports, Number 49, March 22, 2012, wherein the U.S. Department of Health and Human Services estimates the national divorce rate at approximately 50%.
**SOURCE: National Center for Health Statistics; National Safety Council.
MYTH
THREE
PRENUPS ARE JUST FOR CELEBRITIES AND THE WEALTHY.
Students and younger couples with more debt than assets often reject the idea of entering into a premarital agreement based on the rationale that, since they won’t have any significant wealth on the date of their wedding, there is no reason to get a prenup. That reasoning is flawed and short-sighted, except perhaps for those couples who plan to acquire no wealth throughout their marriage. Why? The tired cliché “you snooze you lose” encapsulates the most obvious reason: You simply can’t enter into a prenup after you get married.
In today’s progressive society where the economy is booming, requests for prenuptial agreements are on the rise and more women are requesting them. According to a recent survey taken by the American Academy of Matrimonial Lawyers (AAML), 62% of divorce attorneys reported seeing an increase in the total number of clients seeking prenuptial agreements before marriage during the past three years. Another interesting finding from the AAML survey was that the divorce attorneys who responded also reported seeing more women and millennials requesting prenups in recent years. (SOURCE: American Academy of Matrimonial Lawyers.)
A well-drafted prenup should serve as a roadmap that helps both spouses navigate the path of least resistance and conflict amidst the emotional turmoil of the separation and divorce process. I’ll put Myth #5 to bed by concluding with the proposition that a prenuptial agreement is a much better indicator of your common sense than it is a barometer of the amount of trust in your relationship.
For many people, their largest asset at the time they get married is their future earning potential. As spouses age, earn more money and acquire assets and investments during the marriage, their lives become more complicated. In the event of a divorce many years into a marriage, unwinding their lives is much more complicated too, and every asset owned by a married couple can become a potential source of leverage and conflict. After years of marriage, people often can’t trace what was theirs before the marriage and what is joint marital property. With a prenup, each party can specify premarital property/assets to remain the separate property of their original owner throughout the marriage. A prenup forces couples to discuss and agree on matters that are often major sources of conflict in a divorce trial, prior to entering the marriage. This means that in the event of a separation down the road, a couple with a well-drafted prenup has a much easier path to an uncontested divorce because they already agreed on many of the matters that increase the expense and hostility in a divorce trial.
MYTH
FOUR
PRENUPS AREN'T EVEN ENFORCEABLE.
You might have heard someone declare that a prenup isn’t worth the paper it’s written on, because they never hold up in court. This myth usually derives from a combination of bad information, rare court cases with oddball facts or results, and television/movie fiction.
In reality, a premarital agreement that is prepared and executed in compliance with applicable state and federal laws should be just as enforceable as any other contract. Virginia, like many other states, adopted the Uniform Premarital Agreement Act (Va. Code §§ 20-147 et seq.), making prenups valid and enforceable if done correctly. A court might not enforce a premarital agreement under unusual circumstances (e.g. fraud, duress, non-disclosure of assets), but those pitfalls can easily be avoided with the help of a competent prenup professional.
MYTH
FIVE
COUPLES WHO ENTER INTO A PREMARITAL AGREEMENT MUST NOT TRUST EACH OTHER.
A prenuptial agreement isn’t an indicator that a couple is planning for marital failure or that they don’t trust each other. Quite the opposite, partners who truly trust each other should feel comfortable to agree on the terms of separation in the event their relationship fails. An important benefit of considering a prenup is that it forces a couple to have a candid discussion about their expectations in the event the marriage doesn’t work out. A marrying couple who can discuss the issues covered by a premarital agreement is planning for success. After talking through the topics covered by a prenup each partner better understands the other’s expectations about the marriage, and what happens if things don’t go as planned, before saying “I do.”