Love, Marriage, and Pre-Nups

Reader C has a great question about how to deal with her fiance, who wants her to sign a pre-nuptial agreement…

After 7 years of dating (since my junior year of college) and one year of being engaged, my fiance just brought them up. Both of us have advanced degrees but he’s in finance and I work in public interest law. I am significantly less financially secure than him and will make significantly less in my career. But we’ve always functioned like a team. We’ve both made moves and career decisions for each other. He’s my best friend. But I’m really hurt. Our wedding is only a month and a half out and this feels very rushed to me. We both have said we would never get divorced (and after 8 happy years together, I truly believe we’ll make it), but his phrasing is that “he analyzes risk for a living and he just wants to be extra secure that in the unlikely event of divorce, he is prepared.” I think that even having a pre-nupt opens the door to divorce and don’t understand why if he says he doesn’t believe in divorce that he’d request one. This feels like the biggest breach in our relationship ever. Advice? Am I being ridiculous? Is he? How many corporette readers have pre-nupts (statistics I found said 5-10% of marriages but that includes second marriages and marriages with children from previous marriages where I think it makes more sense)? Can anyone help me get on board with this or am I right to be freaking out (after all, a pre-nupt can only hurt me)?

Interesting question.  I’ve seen articles that say pre-nups are on the rise (even though the oft-quoted statistic that 50% of couples divorce isn’t really true).  Personally, I come to pre-nups from the other side of things: even though I’m wildly in love, as well as Catholic and of the “divorce is not an option” mindset, I’m the one who brought them up with my husband, R. I broached the subject with this little speech:  Good Kat and Good R are marrying now, and we love each other and of course would want to take care of each other (or at least be fair to each other) even if something were to happen and if we were to divorce.  But — if we actually WERE to divorce, that would be a sea change (because we love each other so much right now and can’t possibly imagine it!!) and, in that event, we’d probably be dealing with either Bad Kat or Bad R or both.  And my point was that if we really loved each other now, wouldn’t it be a nice thing if Good Kat and Good R had agreed to the terms of the divorce — and not Bad Kat or Bad R, who probably would have hurt feelings and maybe a bit of blood thirst. Furthermore, even though the pre-nup terms we discussed were very close to New York state law, something else I liked was that if the law changed, or if we moved to a new state, we wouldn’t have to deal with new information — the terms of the divorce would always be a known quantity.

Another side of this discussion, of course, is the adage “don’t marry someone you wouldn’t want to divorce.”  I think that’s very true — but I will say that sometimes qualities that can be attractive to a person, such as competitiveness and determination, can turn against you, and turn hard.  If you’re up against that partner in a divorce, a pre-nup can be a great way to guard against an unfair divorce.

So I would look at the agreement your fiance is proposing (or the terms that he’s proposing, if nothing is written yet) — are the terms fair to you?  Are they what a loving mate would want you to have now, if things go sour in the future? It sounds like he’s going to have a lot of assets (or already does) — what do you want of that?  It doesn’t hurt to talk explicitly about how the situation would change if you have children, especially in the event you take time off from your career to stay home with them for a bit.  (Which, no matter how strongly you think you know one way or another whether you’d like to be a working mom or not, can totally change once the baby arrives — some women find they just can’t leave their little one; others can’t deal with the drudgery of baby rearing.) I recommend the book What to Do Before I Do to you, if only to think about all of the different things you should discuss.

Now, that said, R and I never actually got around to signing the pre-nup — it turned into a post-nup, which we intended to sign before we bought the apartment, but never quite got around to it.  And now that we have a son… well, meh.  (We always joke that everything we have is his now, anyway.)

Readers, what are your thoughts?  Do you have a pre-nup?  Would you be offended if your partner wanted one?

Comments

  1. So…this has been discussed fairly frequently on here before, but I really liked what another commenter said:

    You essentially already have a Pre-nup that decide the terms of your divorce, they are the divorce laws of your state. A pre-nup is just a couples way of deciding ahead of time how those laws will or will not apply to them. It helped me mentally get around the hurdle of OMG, we’re planning a divorce!!

    That aside, I don’t have a pre-nup, so take my comment with a grain of salt.

    • Pre-nups can be really useful for you :

      I have a prenup. Like Kat, it was my idea. But we actually found that it helped the relationship more than I had anticipated. This is why I think prenups are always good:
      1. I believe in marriage forever and after over 4 years we are trully as happy as on the first day. In fact, this was one of the main reasons to get the prenup. The prenup is not only a divorce tool, it is also a dispute resolution tool. For example, my husband really wanted to make sure we couldn’t just run to the court, so we agreed that before filing for divorce we HAVE to mediate our problems with a professional mediator for 6 months. I have 3 sets of friends who loved eachother and thought marriage would last forever, one couple had dated for almost 10 years, and they all got divorced within a year. Completelyl different reasons for each, and noone would have anticipated any of them to end. My parents had one of those great happy marriages everyone envies, and after almost 40 years, theya re now getting divorced – no major breach of trust or anything, they just are unhappy. You just never know, but having a dispute resolution mechanism might help work it out, or at least divorce amicably.
      2. Both of us manage certain assets that really belong to our parents, and we want to be crystal clear that those are not marital property. I NEVER want to feel that I have a claim to his parents house, no matter how angry I may be or what he did to me, or what his family did to me. Today I feel certain I wouldn’t, and he wouldn’t either, but who knows what could happen.
      3. The best surprise, was that we used the prenup to straighten out money management during the marriage. So, for example, say 100% of the money goes into the same pot. After we pay all expenses (incuding student loans), 5% goes to each person’s separate bank account for fun, no questions asked purchases or expenses. Then 80% of the rest goes to savings and 20% to agreed investments. If I want to use my 5% to buy jewelry or to invest in a risky business, save for years and buy a boat, give it all to charity, loan it to my family, or buy lottery tickets, that is my problem. Same for his 5%. This, I found, was the best surprise outcome of the prenup negotiations. It is not enforceable unless we actually get divorced and want to enforce money allocation calculating backwards. But setting it out in writing has really helped us agree on money management and stick to it from the very begining. It also avoids fights (i.e., I think buying that video game is stupid, but as long as it comes from his no-questions-asked %, it is ok, same if I want a super expensive purse or whatever).
      4. I am a lawyer afterall, and there are some things of the default divorce law in my state we don’t agree with, so we changed them, for example, you might not agree on how alimony or child support is calculated. Maybe both of you agree that if one is the main breadwinner that person should give double to the kids than what the law says.

      In my opinion, marriage forces you to face lots of discussions and situations together that you did not expect to face. It is important to learn to negotiate and not to take things personally. If you cannot be honest about your relationship and plan togetehr how to solve potential problems in the future, it will be a lot harder to solve emergencies that you could have never planned for.

      Maybe your fiance is just not great at expressing why the prenup does not eman he thinks you will divorce. Or maybe he is like mine and he just leaves everything to the last minute. Or maybe he was afraid of your reaction. or maybe someone mentioned it to him and he had never thought of it before. It is totally fair to tell him you dislike the appraoch, but I would not knock out prenups alltogetehr based on what society thinks they are (a way for the rich guy to take advantage of the less-afluent girl). Look at the advantages of the prenup. For example, in your case, you might want to set in writing that you are a team and absolutely everything is owened 50%. In fact, you might benefit more from having one than him. In my limited 4 year experience, discussing things in the open and coming to an agreement is ALWAYS better than avoiding the hard talks.

      It took us 10 days to negotiate. A month and a half is short, but longer than you think. And as Kat mentioned, you can always sign a postnup.

  2. If the fiance has significant family money, I understand the interest in a pre-nup. But I do think 6 weeks before a wedding is a rather unfortunate choice of his.

    • I agree the timing is not ideal!

    • I completely agree. Fiance and I are both attorneys and we fully intended to enter into a prenup, not because we expect to divorce or have very different assets or earnings expectations, but because it seemed smart. I think we ultimately won’t do so just because we are okay with the default divorce laws in our state and found the prenup attorneys we contacted to be either overpriced or overly “litigious.” (We had wanted the prenup drafting to be collaborative, but in our state, seems like that is not done.) However, we both agreed on this, and we discussed it as soon as we were engaged. One of us didn’t spring it on the other six weeks before the wedding, when there (presumably) are other, major things to take care of. A post-nup is generally as valid as a prenup, and I would advise that this couple wait until after the wedding to deal with the divorce terms. It requires some amount of time and thought, and while a court might not find six weeks’ notice to be coercive, I certainly would. Or at least, the finance guy should be paying for the corporette attorney to have her own prenup attorney, and that prenup attorney should be high-quality and willing to approach this from a non-collaborative, client-defensive standpoint.

    • The timing makes it seem like a family member or friend talked him into asking for it or planted the seed of doubt. I doubt he randomly started changing his tune a month before the wedding…

  3. My husband and I briefly discussed a prenup but eventually decided not to go for it. In the UK I believe the default assumption on divorce is that assets (including income) acquired during a marriage are divided equally, while assets acquired before a marriage are retained by the individual, which we’re both happy with. (We were also dealing with the expense and bother of a metric ton of immigration-related paperwork at the time, and didn’t feel up to drafting and paying for another legal document we didn’t have to!)

    What we have done is made it very clear in the paperwork for all assets we acquire (ie: house) what will happen to them in case of divorce. I think of it as planning for an alternate universe, rather than any kind of reflection on our current relationship. I strongly feel it’s very important to have arrangements in place, but the nice thing about them is that you can just do them once and then forget about them.

    That said, it sounds like “hey, let’s have a prenup just in case” isn’t necessarily what’s going on here, what with your fiance using language like “need[ing] to protect himself”. I would address that. I also agree with: “Are they what a loving mate would want you to have now, if things go sour in the future?”

  4. Interested to hear the conversation here. I own the house my S/O and I live in and have spent a significant amount of personal cash on renovations, building equity, etc. I will also inherit family land someday and decisions with that will be made between my siblings and I without spousal input. My S/O is also likely to inherit some family assets as well. How should one handle these non-marital assets after marriage?

    • I’m in a similar situation, and would love to get some input.

    • Anonymous :

      Is the deed to the house you live in in your name only? I’m not a lawyer so don’t quote me on this but I think if his name isn’t on the deed it will be harder for him to claim half of it. Also, have in the pre-nup that you get the house.

      • Yes, the deed is in my name. Also, I have paid 100% of the mortgage payments, taxes, permanent alterations to the house. This should always remain my asset. Inheriting family land is probably my larger concern. Should we divorce after it is inherited, there is no way I would be willing to split it. Assuming the divorce is nasty, I also assume he would be less than thrilled to have to abide by the requirements around the land dictated in my parents will. It would seem only proper that in the “Good Cat” scenario, we would agree in a prenup that all iheritances are off the divorce settlement table.

        • This varies by state, but my understanding of my jurisdiction (and I am a lawyer, though not in this field) is that the house would be yours, however, you will have to pay him out for the money he contributed to its improvement during the marriage. Any gifts given to you individually during the marriage would remain your indivudual property – I think inheritance falls under gifts, but not 100% sure. However, if you invest any marital asset (and this includes time spent on the property) to increase the value of the property, that value will have to be split. Because all of this stuff gets very muddy, it is a good idea to have a prenup if you have something you specifically want to protect. (not saying it isn’t a good idea otherwise, but it would especially be in your case).

          • Midwest atty :

            I think the house would or could be considered marital property if both spouses have been living in it, absent a prenup or similar agreement. No-marital or separate” property can be converted to marital property if both spouses live in it, use it, etc. Property received by inheritance or gift, or brought to the marriage, by one spouse is typically protected under state law as separate property in a divorce as long as it’s kept separate and not used or owned by the other spouse. Once separate property is used to buy a car, house, boat, cabin, home improvements that the other spouse uses, etc., it may be converted to marital property and divided in a divorce. Worth checking with a divorce lawyer for the facts.

          • CA law states any inheritances are separate so long as they’re kept separate. i.e. don’t put an inherited house into both spouses’ names. It’s still separate if you do co-mingle, but messier. Same with FLA, you would have to pay back improvements he made to the house with his separate money.

    • Isn’t there such a thing as a “post-nup”? I don’t know the details about what protections it offers but feel like this is a term I have heard before…

      • Yep. My stay-at-home SIL got her DH to sign a postnup when her high-net-worth DH cheated on her. It addresses alimony, residency, asset division, custody and visitation in the event of a divorce. I don’t know if postnups are valid in every state.

    • IL estate planning attorney :

      In Illinois, if you keep inherited property separate (money not kept in a joint bank account- not even for a little while, land titled in your name only, no co-mingling of inherited assets) it stays the property of the person who inherited it. I don’t know the family law rules at all.

  5. While prenups can be ok in certain limited circumstances (and I liked Kat’s explanation, even though I wouldn’t do so), this guy sounds like the WORST. Dropping it on her at this time, given how long they dated/have been engaged, is the definition of duress, particularly given the huge disparity in their financial states/bargaining positions. And too, if they’ve “functioned as a team,” how much of her current status/degree/career path has to do with his input? Worst of all though is that HE wants to be extra secure in ensuring that HE is prepared. Shouldn’t it be about taking care of her too? Will he amend the prenup after the divorce in the case of kids/is there a clause in there dealing with that situation? Even if no kids, what if his job would take them one place, forcing her to give up her job — does she get post-nup amendments/consideration reflecting her sacrifices? Seems like a lot of bean counting and not particularly in tune with the partnership ideal.

    Side note: are they maintaining separate bank accounts after marriage?

    • Okay — if she signed it, even if it was at the last minute, there’s no way a judge would find duress (assuming she had her own attorney and the i’s were dotted and the t’s were crossed).

      While I generally agree that six weeks before the wedding is a terrible time to bring this up, who knows whats going on in the background. Maybe he’s been working up the nerve to bring it up. Maybe he’s getting family pressure. Maybe a friend of his is going through a messy divorce and he’s freaking out. Plus, we know NOTHING from the OP’s letter about the terms proposed for the pre-nup. SO I think you’re streching with some of your assumptions about this guy based only on the knowledge of the timing on when he asked for this.

      • Sorry — there should of been a willingly in that first sentence. My understanding of duress in these situations was like “wife’s pregnant and has no representation and is forced to sign it the day before the wedding” kind of things. Maybe different jurisdictions differ.

        • Agreed. Not duress. Even in the pregnant wife with no representation day before scenario it’s not so easy to set aside a pre nup – I have a friend in that situation and it is surprisingly not a sure thing, by any means. Here, the OP is a grown woman who went to law school – there is not a judge in the world who would find this situation, esp. at six weeks out, to be anything resembling duress.

          • This is definitely a “know your jurisdiction” issue. In my state, there is precedent for the proposition that springing a prenup on someone close to the wedding (not sure if 6 weeks is within that period, but I know it can be more than a day or a week and still be in that window of doubt) is inherently coercive because the big day is so close that the economic and social costs of postponing or calling-off the wedding creates a situation where a person feels compelled to go along with the whole thing even if they are uneasy about the agreement. Having said that, I agree that it is harder for an attorney to make this argument, as she presumably knows enough to identify a raw deal and make an informed decision.

          • At six weeks out I’d assume save the dates have been sent, invitations have probably gone out, vendor deposits have been made, wedding attire is purchased, there are clearly family expectations that the couple will marry. Sure, it isn’t “unemployed pregnant woman the day before her wedding” but it’s certainly shitty and disrespectful behavior for the guy and the OP should really figure out what is behind this. I like the idea of the “good couple” determining the terms—but shouldn’t he have brought it up before six weeks?

    • Well, OK, it sounds like you should file away for future reference that he’ll avoid talking about important things till it can’t be helped any longer. So be prepared to take the bull by the horns when -you- think something needs discussing.
      But I don’t see why 6 weeks is so horrible. Plenty of time to think it over, hire a lawyer of your own, negociate something fair. Since it’s so close to the wedding, you should be able to drive a hard bargain :-).
      Think of it as rehearsal for future difficult situations. This is as good as negotiation is ever going to be. If it’s not good enough, just bail. You don’t have to leave him if you’re not prepared to, just don’t enter into a legal and financial bond with him. Don’t do the usual straight woman thing, first have 2 kids and then dump him, that’s sooo inefficient.

  6. Legally waiting until 6 weeks out was a dumb move on his part. It ups the chances you could get it thrown out and signed under ‘duress’.

    But what are the terms he wants? A properly negotiated pre-nup can help you not hurt you.

    • Little Background :

      Will duress even be considered in terms of getting married? Asking your partner to sign a prenup before marrying them doesn’t sound like something a court would consider duress for.

      Although I completely agree with you, I’d just like a better understanding for myself.

    • No offense to anyone, but are any of the people throwing the “duress” term around U.S. lawyers? While this isn’t my area of expertise, I remember “duress” being defined very narrowly under the law. Picture “gun to your head” not “oh my God, I’ll have to cancel the wedding!”

      • My (very vague) understanding from law school is that duress is interpreted much more broadly in the pre-nup context than in the general contract law context. Possibly because pre-nups are a melding of contract law and family law, and those two legal areas are based in very different policy rationales? I’m not sure.

        • Duress is easier to establish in a pre nup scenario vs. reg. contract, but this situation would not be duress. Six weeks is plenty of time. Having to make an unpleasant decision you’d rather avoid making is not duress.

      • Happy Anon :

        Depending on the family law/code in your jurisdiction, there can be certain time frames within which a prenup will no longer be valid because it gives the indication of duress or coercion or that it wasn’t entered into freely. As far as I can recall from some family law in law school, this varies by state, but I think it might have to be something like 2 months before the marriage in order to be valid in some places?? So in that sense, it’s not “duress” like it would be in a typical contract case.

        • Anon Fam Law Attny :

          It would not be 2 months because that would assume that people have to have a lengthy waiting period pre-marriage. Not everyone has long engagements. The states with waiting periods, like California, have it set at 7 days. Honestly, I get that this is not ideal timing, but six weeks is not even remotely unusual. Anything above a month, and more like two weeks, won’t even raise a red flag in court. No offense at all, but I really hope everyone consults matrimonial lawyers on these issues and does not rely on vague recollections from law school.

  7. Even though he’s the more financially secure partner, a pre-nup can work to your benefit too by ensuring that you will come out ok in the event of a divorce. I would hire your own lawyer – you two should not share a lawyer on this – and work out an agreement that is beneficial to both of you. Having a disinterested party (i.e. the lawyers) handling the negotiations and drafting of the agreement will spare both of you a lot of emotional stress.

    • This. Get thee to a good lawyer immediately. If cost is an issue, since you work in public interest, agree that you’ll pay for the lawyer together. If he wants to be fair then he’ll want you to have your own lawyer. A good lawyer can look at a proposed prenup and pretty quickly get a sense of whether or not it’s fair.

    • ChickintheStix :

      I am so sorry that you’re having to wrestle with this just before your wedding. I think your fiance’s timing is bad, but he may be right about trying to prepare for the unexpected.

      I can think of a real world example of where a friend wishes she had a pre-nuptual agreement to make the division of assets easier in the face of the unexpected. Married 10 years; a lovely couple. Then, husband had a sky diving accident and sufferd a TBI. He is now a different person from the man we knew: he has a violent temper and can’t help himself from saying shocking and painfully inappropriate (raunchy/sexist/racist) things–no matter the circumstances/company. She can’t stay married to him, for many reasons–the primary being that they have small children. Obviously, trajedy doesn’t come to all couples, and I don’t want to be a scare monger. Their story reminds me, though, that what we know today might not be true tomorrow. Get (good) counsel and think about it before you reject the idea.

    • Ugh. Huge bummer. Contacting a divorce lawyer six weeks before my wedding would be tremendously upsetting for me. The whole thing would make me feel angry and sick to my stomach. We all know marriages don’t always last, but the point is to build your life together, not to start counting out what will belong to who when you decide to end it.

      • PS: don’t get a divorce lawyer! That;s way too antagonistic, and not at all the point. Get an estate planning mediator kind of person.

    • The positive side of a prenup :

      I have a prenup (husband is in law and makes a ton more than me, had a lot of assets built up since he is 15 years older, has a child from a previous marriage, and had a pretty ugly divorce that kind of burned him on things).
      I was kind of uncomfortable with the idea coming from a Catholic background of divorce not being an option but knew he wouldn’t go into marriage without one.

      Now, six years in (mind you, mostly very happy years), I have to say it has been a comfort at a few low points. In some ways, it has given me more equality in the relationship. Because the terms dictate that I would leave with a certain amount of money per year of marriage and that he’ll pay my legal fees in the event of a divorce, I’ve never had to deal with feeling like I’m “trapped” in any way. I’m a working professional and know with the extra income that I would be more than financially comfortable (although not as financially comfortable as married since he picks up all house expenses since the house remains his asset). But more important, I know he won’t “outspend” me to keep a divorce from happening since he would be picking up the tab. This is very ugly thinking, but just want to be honest with you. I look at it now sort of like long-term financial planning. What if X happens (in this case divorce), would I be appropriately looked out for? Also, terms can be set so things are revisited if children come along. (I don’t have kids or plan to, but just want to put that out there since someone earlier expressed concern if you became a stay at home mom or something similar.) Honestly, it’s not a fun process but in the long run, I think it can be positive for you, too. In hindsight, I’m glad we have it in place. (I’m a bit of a worrier though by nature.) My married friends without prenups have gone through much more stress when low points hit (and I think they do for anyone), since they’re often questioning whether they could support themselves or their kids if they wanted or needed to move out, etc. A prenup doesn’t mean you don’t see the marriage succeeding any more than contributing more into your 401K means you’re less invested in working.

      • “A prenup doesn’t mean you don’t see the marriage succeeding any more than contributing more into your 401K means you’re less invested in working.”

        I really like this, but then on second thought…the whole idea behind a 401k is to be able to stop working someday, right?

        • Anon Fam Law Attny :

          A lot of people cry when they sign their will. It is so common that we keep tissues on hand for the occasion. Not making a will will not prevent you from dying, yet people think they’ll sign it and get hit by a bus immediately thereafter.

          Like a will, a prenup just forces you to think through the various possibilities and how you would want them to work out if the worst happened. It does not mean you will divorce, just that you have a fair plan in places should that occur. The horror stories are usually ones that result from one spouse not taking it as an opportunity to make a sound plan. Quite frankly, in many situations, it is the responsible thing to do. Like getting tested for STDs before going condomless.

      • Amelia Bedelia :

        I think a pre-nup is easily compared to disability insurance. No one wants to spend money on that. No one wants to plan for a debilitating accident. Those types of accidents do not happen to everyone and you hope they will not happen to you if you live very, very carefully. But sh*t happens. Unplanned things outside our control happen. And if the devastating occurs, you will be happy you bought disability insurance.

        That being said, I do not have a prenup. I got married very young and had nothing. My husband is much older than I and had significant savings. We discussed it and I was in favour of entering into one (for the same reasons Kat articulated). In the end, we did not enter into one due to his family’s pressure (cultural/religious reasons). I earn more now, so it might have helped me more, but I am okay without one. Had I been ten years older when I married, I would have insisted on one.

  8. In Texas you can actually contract with your spouse regarding more rights after marriage than before, so some people recommend signing your nupt agreement both Pre and Post to get all the rights of both statuses. That said, if you can do the same thing post marriage (assuming you don’t immediately acquire substantial assets), why not wait until after the marriage? (Note: I don’t practice family law).

    I also agree with other commenters on the odd timing of this, it seems to me to be a bit of a pressure tactic.

    • I also don’t practice in this area, but I would not wait till after marriage without consulting a lawyer first. If I remember correctly, many states, if not most, do not enforce post nuptial agreements. I think it has something to do with lack of consideration and a public policy determination to not interfere in the couples’ marriage once it takes place.

    • Pressure tactic?
      Ppl seem to be universally assuming bad faith on his part somehow. Don’t a lot of peoe get cold feet shortly before they actually tie the knot? Cut the guy a break, willya?!

      • Yeah, we haven’t heard the first word about what the guy may be proposing. Let’s not assume the worst before he coughs it up.

  9. Corporette Babymamma :

    Sorry that you’re having to deal with this. We did not have a prenup and we didn’t discuss it. I got married when I was young (24) and DH was 29. I had no assets to speak of and $75K in loans, and DH was financially much better off. I understand why people get it done, but I personally would have felt very hurt if DH had brought it up to me. On the other hand, if DH was seriously wealthy, I could (maybe) understand why he would want to protect his assets. In your situation, given the length of the relationship and the timing of the wedding, I’m confused why your fiance did not bring this up earlier. Hope it all works out for you, hang in there.

  10. My husband and I also discussed whether a pre-nup was needed, and decided that we didn’t have existing assets to protect. And we’ve adopted the philosophy that anything we had before the marriage (like, pre-marriage 401k values, etc.) would remain separate. I don’t think that pre-nups are “bad” (and actually think prenups can be good) although I think I would also feel hurt and betrayed if this was a surprise 6 weeks before the wedding.

    I have friends who have a pre-nup because he has a lot of family money and a family business, and his family wanted to protect that. I also have a friend whose husband was adamently against having a pre-nup because he thought it was going into marriage with the expectation of divorce, and, despite having substantial personal assets, she acceded to his demands (despite both of her parents having been divorced multiple times, and having lost substantial assets in each divorce). I think in both of those situations a pre-nup would have been appropriate.

    I think Reader C needs to have a more in-depth discussion with her fiance about why he wants a pre-nup — does he have substantial assets that he wants to keep from her in the event of divorce? Does he want to negotiate about alimony? The language about “needing to protect himself” is raising a red flag — and also to consult with a lawyer. Because just as much as a pre-nup can “protect” him, it can also protect her.

  11. Associette :

    A pre-nup is a good idea, I think, especially if one or both of you enter into the marriage with notable property or wealth. Children, pets and anticipated inheritances may also be things to consider. Of course, your fiance’s timing is poor, but realistically most people think of these agreements right before they head into marriage. I recommend obtaining your own attorney to not only review your fiance’s proposed pre-nup, but also to advise you of what your options are. Having a good attorney will also take some of the emotion out of it for you, which alone, can be quite valuable. After hearing from a family law attorney, you will be in a far better position to determine whether or not having an agreement at all makes sense for you, whether you want to sign the proposed agreement as is, or modify it.

    FWIW, my H and I did not enter into a pre-nup because we did not own any property and did not have significant savings or retirement accounts to “protect.” Entering into an agreement for us would have been too speculative to be valuable for us.

  12. My now-husband and I signed a pre-nup before we got married because there is a chance that I could inherit a significant amount of family money. I don’t think that pre-nups are for every couple, but as stated above, it does give the couple a chance to at least discuss divorce while they still care about each other. Even a couple who doesn’t look at divorce as an option, myself included, the future is unpredictable and we are human. With that said though, I agree with the points made above that the fiance’s timing here was not ideal. The discussion of a pre-nup should be just that, a discussion about the future, and not one partner being blindsided.

  13. Lionheart :

    In California pre-nups presented at a late hour before a wedding can be thrown out as an attempt to railroad the surprised party. Plus I think both parties have to have an opportunity to be represented by counsel. I don’t practice in this area myself but I remember the case from law school because it involved Barry Bond’s marriage to a Swedish waitress or something.
    It’s poor timing but it’s an elephant in the room now so I think you’d be well served to flesh out the issue and try to understand what he’s looking to achieve and decide if that’s something you’ll meet halfway. Good luck!

  14. Anon for this :

    On the topic of “family money” – so BF and i are in the talking about getting married stages, but he has a year and a half left of law school, so it’s a ways out. He and I have briefly discussed prenups, when we’d see them in a movie or whatever, (i think it was entourage, because the situation was basicalyl the same) and he’s always said he’d be really offended. I come from a family of means and I know that I have money that will be left to me from my parents. My BF on the other hand, does not, and will be in the hole for his legal education, while I have no debts. My father has said many times he wants whoever I marry to sign a pre nup, as he believes he’s leaving this money for me and my future, not for someone who’d not be with me….how do i cross this gap between father and BF? im so nervous to even mention this to boyfriend, for fear that he’ll think I think he’s after me for money, or that we’d get divorced? BF and i have a very solid relationship, especially wtih money – ironically, it will probably end up that he makes way more than me down the road, with him entering big law and me…not.

    • Go see a lawyer after you get engaged. If s/he can tell you that, under your state’s law, your spouse won’t have access to anything you inherit, that should pacify your father. My parents were also very insistent on considering a pre-nup for this reason; I saw a lawyer and she told me the above; and they chilled out.

      • You probably have to be careful with the inherited assets, though. In my state, inherited assets are separate as long as they are not co-mingled. This means that if you put an inherited sum into a bank account that only you have access to, great. But once you deposit it into the joint account, or use it to buy a marital home, or similar, it’s property of the marriage.

    • As someone who has not been in your shoes, take this for what you will. I think you need to decide what you want. Are you willing to give 50% of your inheritance to your boyfriend in the event of divorce (or whatever the divorce laws of your state are)? If no, then I think you need to start thinking about having some more in-depth discussions with your boyfriend about pre-nups.

      • But, as some other posters have pointed out, she may not nescessarily need to give 50% of her inheretance to her boyfriend. In many states, inhereted assets are not marital property.

        • Right – she needs to check her state laws. It can also depend on how you use or invest those inherited assets – depending on the laws of the state, if you take an active role in managing those assets (i.e., not just putting them in a mutual fund and leaving them there indefinitely), that could bring them within the purview of marital assets. Or, if you use some of those assets for a down payment on a house, it could do the same.

          Anon for this – you should talk to a lawyer and discuss what you can reasonably expect, in your state, if you were to get divorced without a prenup.

    • MaggieLizer :

      I agree with the commenters that have recommended talking to a lawyer; at the very least, you want to know what you’re facing if things go wrong.

      I would also talk to a lawyer about getting a will. If you predecease future-DH, do you want part or all of your family money passing to his new wife if he remarries and dies before she does? If not, you need to plan for that as soon as you get married.

      Discussing a will might also be a good way to broach the pre-nup topic. All marriages end; they either end in death or divorce. Wills and prenups are just ways to plan for what happens when (not if) the marriage ends.

      • Anon for this :

        Thanks, everyone for the imput. I like the idea of bringing the topic up as a “will” one, and having that segway into prenups, rather than “lets talk about prenup” time. I guess i really wouldn’t want him to have 50% of what’s mine, especially considering that he’d probably use that to pay his law school debts off, which would leave him financially succesful and and debt free, while I reap none of the benefits of working and supporting us while he’s in schoool. Off to start my hunt for a DC area lawyer whose rate isn’t 8 million dollars/hour!

        • We were in a similar situation, although we both had some separate assets going into the marriage and the potential for more, and we have a prenup. Our goal was to allow us to comingle assets without worrying about those assets becoming part of the marital pot by considering it a “loan” to the marriage that would be forgiven over time. We developed this idea, and our lawyers (each had one) helped us craft it. Something you might think about.

          • And I don’t mean salaries or that kind of thing–those go into our joint account. I’m talking about significant separate assets, inheritance, etc.

    • IL estate planning attorney :

      I would tell your dad to create a trust for you in his estate plan. The inherited money can be go into a trust that can be used for your benefit – you could even be your own trustee (although there are possible benefits to having someone else be the trustee, depending on your state and the wording of the trust).
      If you had the power to withdraw money and if you took money out of the trust and put it in a joint account, then the money would be co-mingled and could become marital property – but you would be making that decision with your eyes open.
      The trust could buy things for you – like a house or a car. The trust would own the assets for you. A trust with you as beneficiary could only be used for your benefit – not to benefit your husband or pay off his education bills.
      It’s a way for your dad to be sure that his money will go to benefit you and only you. Your dad could even designate who the balance goes to if you die before it is used up.
      I would not have wanted my dad to put pressure on me to create a prenup before I married (30 years this May). That would have bothered me a lot. I was young and in love…

      • Kind off off topic but…
        Right? My dad is obnoxious (lovingly of course) enough without butting his head into my relationship. Whenever he does, I tell him in no uncertain terms that it is none of his business.
        That said, we have had very serious inheritance issues on both sides of our families resulting in siblings not communicating– so I would strongly suggest you ask you have your parents set up a living trust if inheritance is an issue (even if you are an only child– it will save you time & taxes). My parents did as soon as my younger brother turned 18. It is very simple and says things are split 50/50 (I asked for some family heirlooms that are particularly important to me, my brother asked for others)… but now it is in the open & off the table & will hopefully avoid any possible bad fights.
        I also have this philosophy that if certain things are deal breakers for you, that you KNOW could be big deals for some people (ex. prenups, not changing last name, not wanting kids, wanting your SO to convert to a different religion), you have a responsibility to bring them up early & often in a relationship to avoid misunderstandings later on– and allow the person to either adjust to the idea or move on.

        • And on another side note– Corporette has been a great way for me to discuss things in my relationship with my boyfriend. We have been together several years, will get married eventually but are in no rush, and for the most part, I feel like I know him like the back of my hand. But then every once in a while, he’ll react to something in a way I wouldn’t expect.
          After reading this post, I realized we had never really talked about pre-nups and it was great to bring up the situation in the post & discuss it & see how he felt about them. I always thought we were on the same page… but now I know we are.
          Also, people keep saying “divorce is not an option for me” but I wonder if anyone actually goes into a marriage (besides on reality shows) thinking, hey if it doesn’t work out…… it’s cool.
          I feel like a PSA ;-p

    • I would not gamble with your state’s laws. What if you stay married a really long time and the laws on inherited money and divorce are completely different by the time you finally divorce, when Dad is no more and your kids are grown?

      However, I think this is an instance where it’s OK to play ‘Daddy really insists’ good girl and use that argument to say you really must have a prenup. Feel free to point out that it’s really Daddy’s prenup because it’s Daddy’s money, which makes it more legitimate. It’ll be a little painful to your dignity, but so much less than losing half your assets in a bloody divorce.

  15. i have to say, i’ve grown really tired of people who think that pre-nups are terrible. C states it herself: she is “significantly less financially secure” than her fiance. that’s the situation when pre-nups make the *most* sense. if you enter the marriage at a relatively equal place financially and have similar financial futures, then pre-nups aren’t nearly as important as for a financially unequal relationship. no one ever thinks they’ll get a divorce–their relationship will be successful, they’ll be the positive statistic. the fact is, pre-nups are a great way to protect yourself if things go sour (which they do in a majority of relationships).

    that said, his timing is clearly suspect. get a lawyer (which you should know), fight for yourself. you’re not a victim, this is just a part of relationships in our society.

    • I think if I were in her shoes, I wouldn’t be upset by the pre-nup itself, but by his wording … a marriage is more than a financial transaction these days. Plus, being referred to as a
      I would also be annoyed by the timing. 6 months is probably not legal duress, but it is certainly close enough to the wedding to be extremely stressful for the OP.

  16. What other things would you consider in a pre-nup?

    For example – how do you split assets that are one person’s before marriage, but not paid off entirely (for example – a house or car that is only partially paid off )? How do you divide retirements accounts since they are legally tied to one person?

    I’d be interested in hearing any and all feedback, since most of my friends are not going this route, so I’m not sure whether to consider this option at all.

  17. I suppose there are situations when I might approve of a pre-nup, but in general I think they’re a bad idea. Usually when one party makes more money, it’s because they work longer hours. And the only reason they can do that is because the other party supports them in all kinds of ways – emotional support, doing a disproportionate share of the housework and child rearing, going to evening events with the spouse’s work colleagues, etc. And it may be that the other party could have had a high-flying job too, but sacrificed that potential for their spouse. When I get married, I expect that our contributions will be considered equal, and in the event of a divorce, I’d expect half.

    • no pre-nup :

      This, exactly! I’ve already made a cross-country move for husband’s job, which hurt my career for several years. Now he’s made a cross-country move for my job, which has slowed his career trajectory. So, technically, we’re “even”. But it’s not about “even”, it’s about building a life for us, not building a life “for me” or “for him”. He also likes doing all of our investing, and he’s put “my” money into some risky stocks or whatever, and I’m ok with that because it’s not “my” money. I can’t imagine going into marriage with the mentality that there’s still part of him that he keeps, or part of me that I keep, when we are so intertwined financially, career-wise, emotionally, etc. If you’re going to stomach the risks/hard times together, you should also be willing to share the rewards/good times.

    • MaggieLizer :

      Forgive me if I’m not following you, but isn’t this exactly why you’d want a pre-nup? To make sure that, in the case of divorce, the contributions of each party will be considered equal in a legally binding way?

      • Agreed. Pre-nups are an agreement, and dictate the terms of such. In this case, the pre-nup could recognize the contributions of each party to the marriage, not just the respective salaries.

      • found a peanut :

        In most states the default is that each party walks away with half – pre-nups are only useful if one party (usually the higher-earning spouse or the spouse that comes in with more money) wants to walk away with more.

        • I disagree with this characterization. In states that do the 50/50 distribution, you are entitled to half of the marital property – meaning income/property accumulated during the marriage only. If I work part time at a small firm at a lesser salary raising kids while my spouse works full time at some biglaw job, we would split the assets accumulated over those, let’s say, 8 years relatively equally but I would be left screwed by the arrangement b/c my husband would continue making much more money while my career would be adversly affected by my choices well after the divorce and he would make partner. Hardly the outcome I think is fair. I think people hear pre-nup and they think “way to screw me” but the opposite can be true if you are smart about it. Bottom line is that statistically most men, even when you factor for spousal maintenance and child support, end up better off financially after a divorce while women end up worse. If I was earning less than my SO, I would certainly want to at least think about these things.

        • Not really. Plus many courts do this whole “imputed income” thing for highly educated lowly paid spouses — which the OP is planning to be in the marriage (public interest law). I’ve seen at least one nasty divorce where alimony and child support was slashed where the highly educated mother/ex-wife was able (and pre-kids had) a high paying job but after kids was a SAHM and then a public interest type employee part time after all kids were in school. After the divorce high earning father / ex-husband successfully convinced the court that he should have have to fund her lifestyle choices, when she had the ability to make a high income. Never mind that it was their practice during the marriage and she provided almost all the child care.

          • I think you mean “successfully convinced the court that he should NOT have to fund her lifestyle choices . . . .”

      • I agree with those just above me — you are assuming the prenup is being used to protect the person with fewer assets. Often (maybe usually?) it is not, it is to ensure that the person with more assets does not have to share them as they otherwise would under state law with the person who has less.

        I was also presented with a pre-nup 6 weeks before my wedding, the terms of which required me to renounce the interest I would otherwise have (in the event of a divorce) in any increase in value to a very significant family asset of my husband’s during our marriage. Then, almost immediately after our wedding, I was asked by my husband’s family to make very significant sacrifices to my career so my husband could (indirectly) support the growth in value to the family asset. Nice!

        I have a very happy marriage but I admit I remain bitter about the entire experience. There was a very logical reason that the family had for expecting a pre-nup (I know that intellectually). I also know my experience does not meet the terms of duress (I am a lawyer, and I even hired my own lawyer), but I did not really feel “free” during this transaction at all. It sucked. It made us adversaries (unequal adversaries). I had no equal asset to take off the table. I now hate pre-nups. Just one person’s perspective.

        P.S. In an even more annoying twist, in years since, other family members have stood up for their kids’ new spouses and said, “no way am I insisting that my new son/daughter-in-law sign a pre-nup, that’s insulting.” No one supported me that way, which still rankles me years later.

        • Could you talk about ammending in some way with a post-nup so the amount you would receive upon divorce would reflect the financial sacrifices made post-marriage? I know it is uncomfortable to say but that only seems fair.

        • Why would your husband let his family treat you that way? This isn’t a pre-nup issue, this is a family / marital relations issues. His family should have zero input on your relationship – and it’s on him to tell them to butt out, or cut them out of your life if they do not.

          • I think it is usually a cultural thing that is VERY difficult to fight.
            That said, I think I think I would have threatened to walk.
            One of my good friends had a prenup that sort of “expired” after a certain amount of years, which I think was kind of a cool idea. Not that it disappears, but that the terms change every year and basically level off after 10 yrs of marriage.
            I do agree that prenups are usually used to push people around (mostly women- who are expected to give up or slow down their careers), but in your case & the OP case… you guys bring a lot to the table, don’t forget that- you are educated and smart and you shouldn’t let (or have let) your SO push you into an unfair agreement. And I’m not 100% sure, but I think you can get your spouse to terminate the prenup.

        • I second N, you don’t have a prenup problem, you have an in-law problem. I hope your marriage is very happy indeed, because it sounds like you’re getting royally screwed. If I were you, I’d take steps for that not to continue at least, like focus back on my own career. Your inlaws can hire a housekeeper or whatever if you husband needs it that badly.

  18. I love the idea of a prenup. I think the timing here BLOWS BIG TIME, but in theory — no, I do not think one should be hurt by discussions of a prenup. My thought is exactly as Kat’s: “[W]ouldn’t it be a nice thing if Good Kat and Good R had agreed to the terms of the divorce — and not Bad Kat or Bad R, who probably would have hurt feelings and maybe a bit of blood thirst.” You can agree to fair terms now; you will have a hard time agreeing to fair terms later. I also think that talking through a prenup serves the function of having a hard, heart-to-heart about financial priorities that couples SHOULD have before marriage.

    All that said, take my enthusiasm with a grain of salt, because I don’t have one. DH originally wanted one — his family has all the money, and his earning potential is higher — and I was willing for the reasons discussed above. Then he lost interest, and I didn’t push it. I wish I had, even though I would be the “weaker” party. Don’t get me wrong, our marriage is strong … but the longer I know him, the more convinced I am that I would NEVER want to go up against him in a divorce fight. Especially once kids are in the picture.

  19. no pre-nup :

    I married young, so take this with a grain of salt, but I don’t understand asking for a pre-nup unless you have significant family assets or a family business, or if you’re marrying later in life and you haven’t been together very long. At the point that one or both of you has made ANY sacrifice (forgoing grad school of choice, leaving job to make a cross country move, taking leave to raise a child, etc.) for the betterment of the relationship, I don’t think you should have a pre-nup. To me, the pre-nup says that you aren’t committed to marriage, and that you want a “bail out” plan. I don’t view it as insurance, and I don’t view it as the responsible thing to do, especially 6 weeks before the wedding. Again, maybe it’s because my husband and I came into our marriage with nothing, so anything we’ve acquired would be during our marriage, but I just can’t fathom signing a pre-nup. Maybe if I’d built a substantial career or had assets that belonged to siblings/children it would make more sense to me, but I am opposed to them and completely understand how you feel betrayed by this sudden request. I realize my view is completely one-sided, but I wanted the OP to know that she’s not the only person who would feel upset by a request for a pre-nup, especially after you’ve started building a life together.

  20. I have a couple of anecdotes here. I have family money, but work at an NGO to my husband’s Biglaw, so can see both sides.
    My sister was in a similar situation as me. She married someone who had higher earning potential in his chosen field, but was just starting grad school when they married. She used family money to put him through school, buy their first house, and support their lifestyle through their whole marriage. All seemed fair — it was clear he’d more than make up the balance, financially, in the long run and there was no reason to skimp for a few years knowing what their ultimate situation would be. They both like nice things.
    For reasons no one could have predicted when they were madly in love 25 year olds, they got divorced 6 years into the marriage. No kids. Because my sister had more assets then he did, she was not entitled to any spousal support. The house was in her name (she had made the down payment) and so she was left with a mortgage she could not afford, a lifestyle she could not afford, having spent a huge chunk of her family money on her now ex-husband’s education and life. She took a huge financial hit and lives in much reduced circumstances in a tiny apartment in a terrible neighborhood. Her ex husband lives free of student debt with a partner’s salary and no obligations.
    If she had had a pre nup, this would not have happened.

    When my husband and I were engaged we also talked about a prenup. We pondered the options. I ran some scenarios. We talked about it. We ended up not signing one, as we realized that we could not predict everything about the future and did not want to try. We decided to trust each other’s judgment and inherent values not to want to screw each other over, no matter what happened. It helps that my husband hates having to spend any of my family money ever, and thus my portfolio has only grown (and remains in my name). Since we have a child, we have now arranged our finances to benefit the child, which I’m sure would remain the case in the event of a divorce.
    But that said…there are some things that make this hard. I put down the down payment for our house, but it is in both of our names. He won’t have put as much money into the house as I have until we’ve owned it for about 15 years. So I feel a little like it should be in just my name…but would I feel that way if I were a stay at home mom with no family money and he had put the money down? No. I would want to know that we, as a married couple, were in it together.
    Anyway, I’m rambling. Here’s what I think: tell him you understand it’s not a referendum on love or commitment, but it stings a little. Tell him that though he has higher earning power, you’d prefer that instead of looking at it as him v. her you looked at your combined household income as one thing that supported your household in the lifestyle you both decided you wanted / could afford. And that if you were to get divorced, you (and any children) should ideally be able to all continue at the same level, as that is part of the deal with becoming a family.
    If he’s not cool with that, which is to say if he thinks of his money as only his money, then you need to think about either whether you can stand to be in his “debt” for the rest of your life or whether you can start making more money. Because, no offense, this guy sounds a little controlling (or at least insensitive)

    • found a peanut :

      “If she had had a pre nup, this would not have happened.”

      Maybe. If her prenup said, “In the event we divorce within X years you have to pay me back for the money I spent on your grad school,” then she would have the money she spent on his grad school. But it seems pretty speculative to say that had she had a pre-nup, her situation would be materially better.

      • Or if she had a prenup that required him to take responsibility for the house, or pay her spousal support if his salary (not assets) was higher than hers, etc etc. There’s more to consider than the education cost provision.

        Of course, neither my husband nor I have family money. We came into marriage with roughly the same assets. No prenup here, because, well – everything is marital property. While I make less than he does, it’s not enough less that I would need spousal support (though I live in a state that still favors it) and I’d be entitled to half his pension in the event that we divorced. Given our specific situation, I didn’t think it necessary to have one.

    • I know it’s different by state, but in CA, at least on the bar exam, I remember there being something about you having to pay your spouse back if they pay for your education & you divorce w/in a certain amount of years.

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