As divorce lawyers, we frequently counsel clients who are seeking prenuptial agreements or whose significant others have asked them to sign one. Our clients typically want to know what the divorce laws provide, both with and without a prenup, so they can decide what a prenup can do for -- or to -- them. Legal issues are often the least important concern when negotiating a prenup, however; with prenups, emotions rule the day. Too few clients appreciate this reality at the outset, which leads to difficulty in understanding how to approach the discussions and the negotiating process.
These are the key "laws of emotions" -- the rules that really govern negotiating prenups, from informal discussions between the prospective spouses to formal negotiations between their lawyers.
LAW #1: No fiancée wants to sign a prenup
One of the most common misconceptions between brides and grooms-to-be is that the less affluent of the two is "okay" with signing a prenup. No matter what is said, no fiancée (or fiancé, if the man is the less-moneyed party) wants to sign a prenup. She is, at best, willing to sign a prenup in concept only. And not only does she not want to sign one, she may well resent even being presented with a prenup. It is unwise for the wealthier party to believe (or, even worse, project that belief) that he is "entitled" to a prenup. Such an attitude will only lead to trouble in the relationship.
LAW #2: You snooze, you lose
Waiting until the eleventh hour to raise the issue of a prenup or to discuss its terms is a recipe for disaster. Weddings are still mostly about the bride, even in 2011. No bride wants this special time in her life spoiled by being forced to negotiate what she will receive in spousal support and property upon divorce. Those are not memories she will cherish.
LAW #3: You can have a one-sided prenup or a good marriage, but not both
No bride wants to walk down the aisle with a groom who has "taken her to the cleaners." Living in a home she does not -- and will never -- own, no matter how long the marriage, will lead to lasting unhappiness.
The goal for the wealthier party should be to protect his assets while also being fair. Most importantly, the other party must believe that taking care of her is a priority for him, too. She should never think that her prospective spouse loves and cherishes his money more than he does her.
While a one-sided prenup may make a divorce simpler and easier, it will also make a divorce much more likely, in our experience.
LAW #4: One of you wants the marriage more
Although they are in love and have agreed to marry, the reality is that one party likely wants to be married more than the other party. Understanding and accepting this fact is crucial because of its corollary: the party who is willing to walk away from the marriage has more leverage in the prenup negotiations.
LAW #5: If you don't ask, you don't get
The love that envelops both parties as they contemplate their life together should lead to some degree of generosity and concern on the part of the more affluent party for the financial well-being of his fiancée. More than likely, this feeling of generosity will not be present if the marriage ends in divorce. If the less-moneyed party wants something from her fiancé in the prenup and believes it is fair, then she should ask for it directly from him. Negotiating a prenup is not the time to be shy or to rely on blind trust.
LAW #6: Tone dictates outcome
In this information age, it has never been easier to find a matrimonial lawyer. The challenge for each couple is to find the right attorneys to negotiate their prenup, because the tone set in the negotiations will have a great impact upon their marriage. Avoiding a wretched battle just prior to the wedding should be a priority, so the bride and groom-to-be should think twice before hiring "take no prisoners" lawyers. In our experience, reasonable attorneys will generally achieve fair agreements.
A prenup can bring clarity and certainty to marital financial issues while minimizing the financial costs of divorce. If the wrong approach is taken from the start, however, a prenup can contribute to (and in some cases be the cause of) a difficult marriage and, ultimately, a divorce. Because the quality of a marriage has, perhaps, the greatest impact upon the level of happiness in life, couples contemplating entering into a prenup owe it to each other to be mindful of the laws of emotions.