There have been many articles on The Huffington Post and elsewhere touting the benefits of prenuptial agreements, such as, “Why Engaged Couples Should Sign a Prenup.” These articles typically talk about how resolving and clarifying money issues prior to marriage is a good thing. However, they do not take into account the very important component of most good marriages: the sharing of money and resources. So prenups aren’t necessarily the best thing since sliced bread — they can pose many problems for the future spouses.
Why have a prenup?
There are circumstances where prenuptial agreements address bona fide issues that could derail a marriage. For instance, it may be a second marriage for one or both of the spouses, with children from a first marriage. In these cases, a carefully drafted prenuptial agreement can reduce financial tensions in the marriage and make the marriage better. Or a family with money may insist that their child have a prenup. The future spouses may comply in order to create family peace.
But prenups can overdo it, too. They often go far beyond what is necessary to accomplish narrow goals. And because money and finances are one of the central aspects of marriage, overdrawn prenups can cripple a marriage before it even begins. The old saying “Money is love,” has much truth to it. Although in our culture we marry for love, one of the expressions of love is providing financial security for the beloved. Therefore, prenups tend to signify a withdrawal of love right at the outset.
What happens when you “lawyer up” in a prenup?
The other big problem of premarital agreements is the process in which it is usually done. At a very tender and loving time in their relationship, the parties “lawyer up.” They are now transformed into adversaries.
Imagine this scenario — it happens all the time. The future spouses are in love. The wedding date has been set. Arrangements have been made, and the invitations may have been sent. The couple briefly discussed a prenup earlier but hadn’t really talked about the terms.
Then one of the parties, generally the more-moneyed spouse, hires a lawyer. That lawyer draws up the first draft of the prenup. The initiating spouse may not have discussed the issues he wanted to address in the prenup and what terms he wanted with his own lawyer. He just asked for a “prenup” and got one.
Here comes the “scorched-earth” prenup.
Generally the more-moneyed spouse’s attorney sends a typical “off-the-shelf” prenup. It says that all money earned during the marriage is the husband’s to control. All property accumulated before the marriage and proceeds and gains on it are also his to control. And the husband can decide whether or not to leave his new wife anything if he dies while the marriage is ongoing, even if they’ve been married 30 years. And she has no legal rights remaining to contest any of these terms.
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