New love, so intoxicating we believe it will last forever. The desire to take care of and provide for "until death do us part" co-exists with harsher facts. One-third of couples go their separate ways well before dying. Face it. Divorce is a kind of death.
A conversation about terminating one's vows while creating a wedding gifts registry seems unromantic.
Because a topic is awkward and sensitive does not mean it should be avoided. For many couples having an early discussion--properly conducted--about the possible end of their relationship can actually draw a couple closer together as well as potentially avoid problems down the road.
Recent news about the divorce of billionaire oil man Harold Hamm and wife Sue Ann Arnall captured my attention. Ms. Arnall is contesting the $1 billion she was awarded by an Oklahoma court, claiming she is entitled more of her husband's $18 billion fortune. The lack of a prenup in the Hamm's 26-year marriage could serve as a wake-up call to the rest of us.
Four of us, from different disciplines sat down to discuss some of the things couples should be thinking about well before they walk down the aisle. In that discussion was: a therapist (me), Tara Fass; a financial planner, Lewis Perkins; a family lawyer, Maryanne Golsan; and a mediator, Hali Ziff. All agreed that the prenup forces us to simultaneously talk about love, money, and the law - which we acknowledge sounds like the opening line of a bad joke.
Before we begin, a professional warning is in order: What follows is incomplete and not to be construed as professional advice. Family law is highly circumstantial and state laws differ widely. Because each of us practices in southern California our discussion pertains to the realities of California, a state widely considered on the forefront of social change.
Most think of a prenup being for partners entering matrimony with unequal means. The retro-model is a high-earning man demanding his pretty young bride sign a prenup before they tie the knot, however, is changing. Today the big earner is often a woman, and the big earner at the beginning might not be the same one at the end. So, unpredictability provides one good reason for both parties to define terms at the outset.
Another rationale is illustrated by the acrimony hijacking many split-ups. Tragically children can become little more than pawns in the game and end up as collateral damage. Legal proceedings often drag on for years to the attorneys' benefit.
Couples who tackle big problems together early deepen their intimacy. If war is too important to be left to the generals, then prenups are too important to be left primarily to the lawyers. Clearly, financial matters will be at the center of the conversation so the expertise of a financial planner is very useful.
Given the emotional delicacy, the presence of a therapist can be essential.
We four concur: Prenups should be de rigueur in modern marriages. We believe the negotiation process and lively, though at times gut wrenching, can render a living document that actually frees up good will, so precious to nurturing a worthwhile marriage.
Here are a few things to think about when considering a prenup:
Enforceability: We are of one mind on this issue. You owe it to yourselves to work with a family law professional, even if a business lawyer friend or acquaintance tells you a premarital agreement is just another contract, it is not. You need an expert fully versed in the changing public policy issues and the nuances of family law relevant to enforcement decades down the road. For example, in California and many other states, the agreement can only cover property division and spousal support, but cannot touch issues of child support, visitation rights, religion, or state of residence.
Softening the Blow: Being generous within reason can lead to a gentler, kinder ambiance surrounding the negotiation. As fortunes may rise and fall during the course of a marriage, it makes sense to avoid promises to pay out lump-sums, the naming a specific asset, or fixing a dollar amount now. No one can predict the growth or decline in assets and incomes, inflation, wild financial success or even bankruptcy.
Reasonability: As a therapist I've seen it many times--long-term satisfaction begins with realistic expectations. Unreasonably high expectations can lead to disappointment, resentment, and anger--which do not bode well for a successful marriage. Best to strive for transparency, air matters out early and deal with hidden motivations, especially more nefarious ones.
Fair Play: Most legal experts recommend that each party have their own representation (attorney) to ensure that the more powerful party does not take advantage of the weaker one. Typically, each party's lawyers review the agreement before signing, but interactions between two attorneys can become adversarial. We suggest using a mediator to harmonize both partners' interests with input from experts such as financial planners and therapists as the gold standard.
Mediators also tend to be skillful collaborators and more inclined to embrace the emotional dimensions of these negotiations. Taking your prenup seriously has other advantages for goal tuning, as well as investment and estate planning.
Future Windfalls: You may be lucky enough to inherit money from elders. Parents and grandparents are often uneasy about leaving dosh that may fall under the control of a son-in-law or daughter-in-law. Explicitly addressing this in the prenup, provides reassurances for your generous relatives. Besides, they can provide a good "excuse" (if you need one) for why a prenup is wise, even essential. On the other hand, you may have children of your own, or an 'ex,' from a prior marriage whom your support.
It's best to think about the prenuptial agreement less as an exit strategy than as a worst-case contingency plan with additional benefits for your relationship. Planning ahead when it's well done, can make everyone feel safer and more secure in the present while it reduces the chances of catastrophic consequences in the future.