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Prenuptial Agreements: Are They Necessary? Two Legal Experts Debate

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News reports of celebrity splits often center around one big question: Does the divorcing couple have a prenup? And what happens if they don't?

But are these decidedly unromantic pre-wedding agreements really necessary? We asked celebrity divorce lawyer Raoul Felder and family law attorney Laurie Israel to debate that question in a HuffPost exclusive.


Pre-debate poll:

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Every engaged couple should have a prenuptial agreement.

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Who makes the better argument?

In America, if you are getting married and do not have a prenuptial agreement, you ought to see a psychiatrist instead of a lawyer. Modern divorces are expensive, intrusive and protracted. Today, in a divorce, things such as celebrity status, reputation, goodwill, etc., are valued. Formerly, this was not the case. Often there are things for which there are no discernable values. The numbers put on them are based on smoke and mirrors; for instance, if I were getting divorced, there would be a value put on my legal practice and I would have to write a check to my wife for “her” share of my practice. However, back in the real world (as opposed to the divorce fantasy world), I could not give away my practice, sell it, barter it or put it up as security to borrow money. Yet the check I would be required to write for my wife’s interest would be in very real dollars. There are several arguments that are raised against prenuptial agreements. First is the argument made by people who have very modest finances and feel that a prenuptial agreement is not necessary. They are for rich people, the famous 1 percent and not necessary. However, the truth is, we live in a country where the young woman who sells tickets may, years later, own the theater; today’s waiter may tomorrow be owner of the restaurant. The point is, in America, everyone has prospects and everyone is entitled to their dreams. There was never a person who got married and proclaimed, “I’m poor and I don’t have a dime, and I never intend to have a dime.”Other people claim a prenuptial agreement is a terrible way to start a marriage. Sure, it shows distrust and at core center it is the most unromantic way imaginable to begin a marriage! However, if one wants to see un-romance, think about the kicking, biting, scratching and clawing at each other that takes place in a divorce action. No comparison! Some people are concerned that a prenuptial agreement could start an argument before marriage and the end might be that the marriage never takes place. The thinking is that you are dealing with people at their most vulnerable and antagonism right before the marriage should be avoided since each of the parties may walk away from the marriage. Not a perspicacious beginning! The reply should be that if a discussion of money and what each party is entitled to after a breakup causes the marriage plans to be cancelled, both parties are better off finding this out now rather than later. A prenuptial agreement often is a very positive force in a marriage. It allows people to know exactly where they are at, as far as financial gain or loss, at any given point in time in the marriage. Wars are caused by miscalculation. In the Second World War, the Japanese miscalculated America’s resolve after their surprise attack. In the First World War, surveys taken of soldiers two years after it began, revealed that virtually none of them understood what the war was about. In a prenuptial agreement, a spouse will understand the financial rewards and cost in a divorce at any point in time in the marriage. Some people are gun-shy about prenuptial agreements because they read about frequent litigation to set the prenuptial agreements aside. The best example in this case might be Ivana Trump. As soon as the Trumps announced their divorce, people who had prenuptial agreements all over the country were upset. They thought, “If Donald Trump, the smartest guy in the world, has a prenuptial agreement that is going to be set aside, how will I, who used a lawyer sitting in a storefront around the corner to prepare mine, fare?” The truth is, Donald Trump’s prenuptial agreement was fine, and prenuptial agreements are alive and well and living in America. The reason there is lots of litigation allowing prenups to be set aside during divorce is because, if you sue your spouse and lose, you are back with the deal you originally bargained for (the prenup). The bottom line: A prenuptial agreement provides a path for a divorce to end a marriage quickly, fairly in a dignified and reasonable fashion. - Raoul Felder
In my law practice, I get a steady stream of potential clients wanting prenuptial agreements. These potential clients read about them in the media and are being told that they are crucial for someone about to be married. Some of them are being advised to get one by their accountants, business associates, lawyers, and/or family members. But beware. Unlike what the media reports, prenups can be very dangerous for your marital health. Here’s why: 1. Prenups lack “consideration.” The prenups in a first marriage are not “give and take” but “take and take.” Normally a contract is an equal exchange for value. That’s what “consideration” is. But prenups are an exception -– they don’t have to have consideration. The lack of consideration in the contract will show up later when you most need it. For instance, the lack of consideration is evident when a divorce takes places 30 years after the wedding, and one of the spouses (by mutual consent) has done most of the homemaking to the detriment of his or her career. 2. Prenups make you think less of your spouse. You start perceiving your partner differently, and see him/her as over-concerned about money. Ironically, the marriage becomes more concerned with money after a prenup than it would have been without the prenup. I have heard people say their marriage never recovered from the prenup. 3. Most prenups are much more extreme than they need to be. The typical prenup says that you can disinherit your spouse if you want to. You can disinherit your spouse even if you die after a 30-year marriage and your marriage is ongoing at the time of your death. This is overreaching and unnecessary. 4. Prenups provide a lifetime of bad memories. Going through the process of getting a prenup is very difficult, entailing many meetings with lawyers and reviews of drafts. Prenups always cause tears and bad feelings at a time in one’s life that is supposed to be loving and beautiful. There is no way to say it other than the person you thought loved you wants to take things away from you. That’s what a prenup is, at the heart of it. It’s very nasty. It will always be remembered. 5. They make for a difficult situation between you and your in-laws. It is often the parents of the more moneyed spouse who suggest the prenup in the first place. Walking down the aisle, stripped of your marital rights, may make you feel less kindly and loving towards your in-laws. 6. They change the basic premises of what a marriage is. A good marriage involves connectedness and sharing at every level. Finances and creating a good livelihood and security is very important to a marriage. Take that area away and your marriage will limp along. Ever hear of that adage, “Money is love”? It is true in marriage –- one of the ways you show your love is to be generous to your spouse with money. 7. It is the single most important contract you will ever sign in your life, and you have no idea of its implications when you sign it. Young people getting married are in the throes love. You need to have been married for a long time to understand what marriage is. If you sign a prenup, you are signing away rights that will become very important to you in future years. And this is the single most valuable contact you will likely ever sign. 8. They encourage money manipulation and greed over sharing, openness and generosity. Prenups define “separate property” as the property you get to keep and control during your marriage. People with prenups tend to manipulate their property during the marriage by adding to their “separate property”. By “protecting yourself” (the ostensible reason for the prenup) you have succeeded in leading to a dysfunctional marriage which is now more likely to fail. 9. People get prenups because they don’t understand that “the law” is the fairest way to come to a divorce settlement. Divorce law is there for a reason. There are as many different marriages as there are people. Divorce law is the way people are able to handle all these various factual differences and come to a fair result. And since divorce laws in states have been interpreted by court cases 99 percent of the time, a case settles without litigation. Trust the law to be fair. Prenups are inherently unfair. So don’t swallow the Kool-Aid and think that prenups are the best thing for your upcoming marriage since sliced bread. In spite of the recent media blitz on prenups, it’s not true. There is no better way to destroy your marriage before it’s even started than to have a prenup. If you choose to be married, do it fairly and generously. Trust in the tradition of marriage as a sharing of everything, including finances. Trust in the law to treat both of you fairly should you decide to end your marriage.- Laurie Israel



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