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We can usually get on board with the idea of car insurance, health insurance, life insurance, phone insurance, home insurance, travel insurance – really just about every type of insurance except a prenup. And that’s what a prenuptial agreement is: insurance. Think about it: you hope to never need it, you’re going to do all you can on your end to prevent having to use it, but you have some awareness that circumstances beyond your control could put you in a position, one day, to be really happy to have it. Like with a car crash, home flood, earthquake, or fatality – your own or somebody else’s – you don’t want to go there, mentally, but you allow yourself for just a moment, to think about how you’d want yourself, your loved ones, or your property to be protected under those circumstances. It’s the same with a prenup. You don’t want to think of getting a divorce. But if you did, there would be certain forms of protection you’d be glad you had put into place. Of course, the awkward thing about a prenup is that, unlike health or phone insurance, it deals with an issue of a very personal nature. For that reason, you may have these uncomfortable moments in creating your prenup.
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Being the one to bring it up
First off, nobody wants to be the one to bring it up. The one who brings it up feels like they’re the one suggesting that this marriage could fail – they feel like they’re introducing doubt. Truly, they’re being responsible, and doing both parties a favor, but it feels like they’re the one saying, “I don’t have 100 percent confidence we’ll make it.”
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Revealing all that you have
In creating a prenup, each party must reveal everything that they have. Either party may have assets they hadn’t disclosed over the years, perhaps because it just didn’t come up, or maybe because they were actively hiding those. So this can be a big “ah-ha” moment when you reveal your full assets, and your debt. It can bring up an argument. If, for example, your partner reveals that he owns an apartment in another state that his grandparents left him, you can feel, “Well, why didn’t you ever tell me that? That’s a big thing to hide.”
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What if one makes it big?
You’re creating this prenup considering your current financial situations. But those may change. So you have to discuss things like, “Okay, right now, we’re saying this would be split 50/50. But what if, say, I hit it big time and suddenly made 100 times more than you. Is that fair to split that up 50/50 in the event of a divorce?”
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“Oh so you’d make it big? Not me?”
Then there could be the issue of pride around these hypotheticals. If your partner says, “Okay, so, let’s say I hit it big time…” you might say, “So…why in this scenario are you the one that becomes hugely successful? You don’t think I could become hugely successful?”
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What if the other stops working?
In some situations, one person may become so wealthy that they tell their spouse, “Hey, my income can support both of us and then some. It doesn’t make sense for you to continue to work at a job that you hate and stresses you out, when you don’t have to.” Fine. So one becomes a stay at home partner or parent. But what happens if that couple divorces, and one person has been out of the job market for years per her partner’s request, and now struggles to get a job? Should she be entitled to large alimony? Or a good chunk of her partner’s money?
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What about inheritance?
Inheritance can be very personal and very tricky. Sure, right now, I think that if my grandparents left me their beautiful apartment in the South of France, I’d be glad to share that with my partner. But if we were to divorce, it would kind of make me feel sick to have what would then be an outsider have ownership in my family heirloom.
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What about inherited property renovations?
What if, when we are together, my partner dedicates his personal funds to help renovate or upkeep my inherited property? Or I use some of my funds to help him upkeep some of his family’s property? If we divorce, where does that money go? If I no longer have ownership in that property, but I spent money to improve it, shouldn’t I be entitled to something? You can see how these conversations are necessary, but very uncomfortable.
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What about infidelity?
Should there be a fidelity clause? Some couples think so. Some feel that the terms of the prenup should become null and void if one person cheats. More specifically, the cheater loses out on his or her benefits laid out in the prenup, and then you’re just in a battle with lawyers. You don’t want to think your partner ever would cheat but if he did…you’d feel pretty pissed if a cheater got half your money.
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Anything else that might overturn it
You can set the terms of your prenup any way you like. You may want to have other conditions under which the prenup would become null and void. What if one person withholds sex for years? What if one person becomes abusive? There are situations in which you may feel your partner would no longer be entitled to what was laid out in the prenup.
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When your lawyer wants to protect you
You should both have your respective (read: separate) lawyers look over the prenup. It’s what is right. However, be prepared for the fact that your lawyer is there to protect you – just you, and not your spouse. So he may point out parts of the prenup that aren’t advantageous to you, and pressure you to change those.
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Does it ever expire?
Some people put an expiration date on their prenups. Maybe it’s after ten years. Maybe it’s after having two children. Or, would you like to say that you’ll renew the prenup at a certain point, reviewing it, and allowing for the possibility of changes? One person may never want it to expire, which raises the question again of, “So…do you not trust me? Or do you not have faith in us?”
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What about debt that only benefits one?
What if, during the marriage, you both take on debt that only benefits one person. Maybe you, with the better credit, co-sign on a loan to help your partner open his business. Then you divorce. Now you have that debt, for a business from which only he is benefiting. What happens then? Do you become a partner in the business? Do you get some of the income from that business then?
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Your family wants to protect you
Your family is going to want a say in things. They love your spouse, but they’re protective of you. They’re also protective of some of the family assets. If they learn anything about your partner’s wishes for the prenup, they may judge him for it. He’s “part of the family”… of course…until the issue of the prenup comes up. Then your family will very much see it as him being an outsider.
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A decent lead-up time
You should each get a copy of the final prenup at least one week before signing it. But honestly, you should take much more time than that to review it. However, if either of you is lagging, and then your partner only approves the final copy a mere six days before your appointment with the notary, you may want to push back that appointment. You may want more time to review. And your partner may feel that’s a sign of distrust.
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A perceived moment of selfishness
In order to make a prenup that will best serve you both, you have to really imagine a life in which you are separated. You have to look out for yourself. And talking to your partner about a hypothetical world in which you aren’t together is painful. It may bring out moments of selfishness in you both, that you aren’t happy to see.
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