In my years of practice as a matrimonial lawyer, I have twice been called upon to review proposed pre-nuptial agreements prepared by the lawyer for the potential groom. In one case the groom's father, having gone through a "disastrous" divorce, insisted on a pre-nup as a way of protecting the large and prosperous family business. In the other it was the groom himself, a new doctor bent on insuring that his chosen mate wouldn't get any of the upside of his medical school investment. In both cases the potential brides were staggeringly beautiful, and saw the impending marriage as a-once-in-a-lifetime opportunity. Both showed up in my office just weeks before the wedding, pre-nup in hand, wanting me to "look it over."
The two documents prepared by attorneys in different states, were remarkably similar. They provided, clearly and unambiguously, that under no circumstance would the wife ever leave the husband, or be left by the husband, with anything other than what she came with or was gifted with during the marriage: not money, or property, or even custody of children. These terms applied regardless of circumstance, ("Honey, I found someone I like better, so pack your things."). They applied regardless of the length of the marriage, e.g., there were no sunset provisions and no step-downs or fade-outs. I'm not a judge, so I can't say whether either was enforceable in Court, but getting the input of an attorney increased the chances it would be upheld. There would never be an economic partnership in these marriages. When "the best years" of these women's lives were gone; chances were good, they would be, too. The terms were "take it, or leave it." My advice, in writing, was RUN, while you have the chance. Neither took it.
I don't have a postscript. Neither has come to me for representation in a divorce...so far. I'm sharing this story because pre and post-nuptial contracts are becoming increasingly popular, not because more people have family fortunes, or the prospect of million dollar a year plus incomes to protect, but rather because increasingly, couples want to avoid the economic, social, and emotional ravages of divorce.
Unavoidably, legislatures and judges don't know your circumstances. They make and apply rules that, at best, are geared to some theoretical standard of fairness. So instead, couples are using their constitutionally protected right to contract to make their own rules -- about how they will treat each other in divorce, agreeing to avoid lawyers and the courts, and committing to protect their children. However, the great majority of these pre-nups don't take full advantage of the opportunities available, and are limited, largely, if not solely, to economics, and apply only if there is an end to the marriage.
Couples are not limited to agreements about the terms of their divorce. They have the opportunity to make agreements about how their marriage will work, how important decisions will be made, and the terms of their marital partnership. Once these agreements are made they can, and should, be reviewed and updated as circumstances change and evolve. Even though these broader marriage agreements are new, couples don't need to do this important work alone. There are collaboratively trained professionals across the United States and Canada, and beyond, who are prepared to assist couples in making plans and building strong, functional partnerships in a process called Collaborative Marriage Planning.
The process of generating a plan for the marriage (as opposed to just planning for the wedding) stimulates valuable early communication about each person's essential needs, interests and concerns. Like a traditional pre-nup, a collaborative marriage partnership agreement can enable couples to avoid court in the event of divorce. In addition, by stimulating communication about what each person needs and expects from the marriage partnership early in the relationship, the collaborative marriage planning process can improve the chances of having a successful, durable and satisfying marriage partnership.
Further information about the process of collaborative marriage planning; its benefits, and how to get started, is available on the web.