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Telling people I’m engaged, I’ve learned, means fielding a host of follow-up questions. Have you set a date? Do you have a venue? And, from bolder folks, or the ones who know I write about money, are you guys going to get a prenup?
Before I got engaged, I had never really considered it. I thought prenuptial agreements were for famous actors on their third marriage — a way for someone with a lot of money to protect themselves from losing half their fortune in a divorce.
I am a little further along in my career than my fiancé and I’ve managed to save a bit more. But it’s not like either of us has family jewels or a trust fund to protect.
The other reason I hadn’t thought about it is because it feels bizarre and pessimistic to consider divorce while I’m planning a wedding.
So I decided to ask some lawyers and even a financial therapist about it. Those conversations convinced me that discussing a prenup with my fiancé was probably the smart thing to do, even if it still felt a little weird.
“I don’t think that every person who is soon to be married has to get a prenuptial agreement,” says Kelly Frawley, chair of the matrimonial and family law practice at Kasowitz LLP in New York City. “But I do think if somebody has the resources to meet with the family law attorney, they should, and they should meet with a family law attorney in the state where they intend to live as a married couple.”
Why a prenup could make financial sense
The laws surrounding the division of marital property in the case of a divorce vary from state to state and typically follow one of two models.
In “community property” states, such as Arizona, California and Nevada, courts generally mandate a 50/50 split of assets, income and debts acquired during the marriage. States that follow the more common “equitable distribution” model generally aim for a “fair” division of assets rather than an equal one.
Under the latter model, a firefighter with a pension might argue, “‘I’m the one that saved the lives, I’m the one that, you know, put my life on the line,’” says Rock Rocheleau, a divorce attorney and managing partner at Right Lawyers in Las Vegas Nevada. “So the judge maybe gives him 60% instead of only 50%.”
As explained by the experts I talked to, in the event of a divorce, absent an agreement, the courts — not you — will decide how to financially divide you and your partner.
“What a prenup allows you to do is, basically, you’re an adult and you can contract around the standard way things are going to be divided,” says Rocheleau.
Maybe you think that certain accounts, given what they looked like before the marriage or what you plan to contribute to them, should be divided 70/30 rather than 50/50. Maybe you’re happy to split marital property down the middle but don’t want the prospect of paying alimony looming over your head. Maybe you just want to ensure that you’re keeping whatever you brought into the marriage in full.
By drawing out your specific wishes now, you can avoid a potentially costly legal battle down the road, Rocheleau says. “If you don’t have a prenup, the standard laws are going to apply.”
How to have the prenup conversation
I was advised that to make a prenup happen, my fiancé and I would generally have to hire attorneys — one to draft the agreement on behalf of one spouse, and the another to review on behalf of the other. Rocheleau said that we could generally expect to spend $3,000 to $4,000 with lawyers who specializes in marital law.
Both lawyers said that I should start the process well before my wedding day. For one thing, getting a prenup done too close to the day puts the agreement on legally shaky ground, because it could be considered coercive.
“It’s counterintuitive, but in an ideal world you would start to have that conversation before you become engaged,” says Frawley. That avoids the possibility that one spouse feels undue pressure from the other. “If it’s a deal breaker,” she says, “you’d rather know sooner rather than later.”
That ship has sailed for us, but we’re still more than a year out. Plenty of time to get a legal document signed. But how do I even bring that up? Between discussing cutlery and flower arrangements, “Hey, by the way, here’s how I want the money to go if this whole thing doesn’t work out”?
Megan McCoy, a financial therapist and professor at Kansas State University offered me two tips for framing the conversation.
Ideally, a prenup should be about protecting both parties financially, whether they have disparate incomes, inheritances, business ownership or significant debts, she says. To that end, this isn’t a conversation about money. It’s about shelving that issue in favor of focusing on your marriage.
“We have to frame it as, we’re taking money off the table and going into this relationship because we love each other, and money is not why,” she says.
Another helpful exercise, McCoy says, is to couch potentially thorny or negative interactions in the context of an overall positive situation.
“We need to make sure we’re also having these positive financial conversations, as well as the nitty gritty,” she says. The prenup, she says, can be part of a larger conversation that includes dreams about your financial future, individual career and money goals, and your aspirations as a family.
“That way it’s not just about what’s mine versus what’s yours, but also, how you are going to grow together,” she says.
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