​Prenuptial Agreements are Ideally Future Tense.

Prenuptial agreements should be recognized as more important to matrimonial harmony than marital settlement agreements, the latter being entered into only when the parties have decided to separate but have failed to prepare a prenuptial agreement.

Today’s couples who are planning to get married should seriously consider preparing a prenuptial agreement.
For many, however, the very idea of a prenuptial agreement evokes the idea of mistrust and faltering commitment to the relationship.  After all, many years ago, many states prohibited prenuptial agreements, because their legislators believed that these agreements encouraged divorce among married couples.  And many of today’s narratives in our culture contain the theme of one economically-advantaged party, about to wed a not-so-advantaged fiancé, who proposes to the fiancé that they prepare a “prenup,” and the immediate implication to most is that in making such a proposal the former party is manifesting weak commitment to the permanence of the marriage.  Because, the attitude goes, who needs a prenup if the parties are committed to living happily ever after?

One should think of the “prenuptial agreement” as more of a plan than as a “settlement agreement.” 

History has shown that divorce is an increasingly undeniable possibility, however remote that possibility may be.  Also undeniable is the consideration that trying to settle our affairs when ending the marriage is often a far thornier proposition than trying to plan for this possibility as part of the preparation for the marriage. 

The term, “settlement,” refers to something done to resolve a dispute.  The idea of a prenup is to avoid or minimize disputes, rather than to find oneself confronted (and confounded) by them.

For this reason, the idea of prenuptial agreements should not be thought of as something available exclusively for the benefit of the wealthy.  On the other hand, the wealthy party is in a better position to think about the spouse’s future financial welfare while preserving his or her own assets. A prenup should be recognized by any couple as a planning tool that enables and encourages them to think ahead and to intelligently chart the future of their relationship.  A couple able to adopt this viewpoint can begin to think creatively about that future and can progress in that thinking toward win-win outcomes.

The challenge has to do with both parties being willing to confront the theoretical possibility of a future separation while maintaining concern for the future well-being of the person he or she loves most passionately right now.  Think, for example, of how many issues may arise when trying to negotiate a settlement agreement ending the marriage. Issues that, without planning, are not likely to be considered until after the fact of a painful separation.

The plan should start with the parties in the marriage organizing their relationships as family members. What hats are each going to wear?  As providers; as parents; as members of a family? Is one spouse going to work and support the family to give the other spouse time to study and become more financially able? Or, similarly, is one going to be a stay-at-home, full time parent while the other is out earning the daily bread? The variations, of course, are nearly infinite.  These are roles newlyweds usually adopt in some manner.  Unfortunately, however, this is something the parties usually arrive at as a matter of course, rather than something creatively thought out, and adopted as a matter of policy.

Then, once this is done, how will these posts be addressed should the parties separate?  And how will such contributions be valuated and how will each family member be provided for? Again, policy should be set, with the goal being achieving the optimum long-range survival of each family member.

How much more likely, under these circumstances of planning, is each party to give serious attention to—and concern for—the needs, wants and welfare of the other family members, than when caught in the emotional conflicts of trying to negotiate an after-the-fact, dissolution settlement agreement?