THE BLOG

Prenuptial Agreements: The Ultimate Symbol of Love?

08/22/2014 11:52 am ET | Updated Oct 22, 2014
  • Justine Borer matrimonial lawyer/mediator and blogger at justasyouwished.com

Marriage is a profound and public proclamation of love and it is also a government-sanctioned economic partnership with attendant rights and responsibilities.

Prenups are growing in popularity. One reason people want them is to protect their separate property.

What is separate property?

Separate property is owned by one spouse before the marriage or inherited by or gifted to that spouse (and specifically that spouse, not the couple) after the marriage. Separate property is contrasted with "marital property" owned by both spouses. Prime examples of marital property include money earned by either spouse during the marriage or (in many cases) real property purchased during the marriage. Marital property is subject to equitable distribution (division between the spouses) at divorce. On the other hand, separate property is not divided, and instead remains the property of the spouse who owned it.

What percentage of married couples in New York State have prenups?

This is impossible to determine. Many couples who have them may not be eager to divulge because prenups carry stigma. And there is no reporting requirement.

Which special concerns face couples in their 20s and 30s who are considering prenups?

Anecdotally, prenup-related stigma in this age group can be heightened. Older spouses who have been married before (sometimes several times) and have significant assets and children from prior marriages can put forth practical reasons for needing prenups. For couples in their 20s/30s, about to begin their lives together, prenups can appear anti-romantic.

Yet prenups are crucial for members of this age group, if only because prenups compel fiances who are "flying high on the wings of love" to engage in concrete (and possibly uncomfortable) conversations about future plans, particularly about money. For example, will the spouses maintain separate checking accounts? Will salaries automatically be deposited into the same checking account? Will the spouses need to consult one another before withdrawing money and/or writing checks? What will happen to the money in the checking account if the couple divorces?

The timing couldn't be worse. No one wants to talk about asking permission to write checks, and even less about what would happen if a marriage doesn't work out, at a time when the focus is on a wedding, happiness, family, and love for a future spouse.

It is a lawyer's (sometimes unpleasant) job to motivate her client to have these conversations. It is also a lawyer's good fortune to work with clients during this joyful and optimistic time in their lives.
Is it easier to represent men or women in prenups?

New York lawyers may only represent one party (one fiancé) for conflict of interest reasons. The other fiancé is well-advised to find his own lawyer and can also proceed pro se (represent himself or herself).

Most lawyers represent either gender and have no preference. Each gender has tendencies and the exceptions swallow the rules. The dynamic is based more fundamentally on who requested the prenup (and thus tends to have more assets and/or expectancies) than on gender.

Female fiancees in their 30s sometimes contend with "baby fever" that can lead them to treat prenups as a hurdle. If the pressure of "baby fever" rises to the level of duress, meaning a female client appears to experience undue pressure to sign a heavily weighed prenup simply to ensure the wedding happens, a lawyer would need to follow certain procedures to safeguard against it, for ethical reasons, to protect the client, and to conform to New York law.

When duress is not an issue, the lawyer should remind her client that a prenup is a formal document and is not to be treated casually.

What about kids and alimony (maintenance)?

Couples love to make plans for children who are not yet born or conceived. Romantic inclinations trigger this tendency. However, as a general policy some lawyers (including me) do not address unborn children in prenups because, as John Lennon said, "life is what happens when you're busy making other plans." There are a few exceptions (most notably, what would happen if minor children live during high school or earlier in the home they've grown up in, their parents split up, and one of the parents moves out and/or wants to sell the home).

So too for maintenance. At divorce, prenup or no, the "non-moneyed spouse" will often receive monthly payments intended to help her (occasionally him) get back on her feet financially. This can be particularly important in cases when a wife/mother (or husband/father) has taken herself out of the workforce for many years and must re-establish herself professionally. Maintenance can also allow the lower-earning spouse to enjoy a standard of living closer to the one that characterized the marriage.

Couples often have creative ideas about maintenance that they want to memorialize in prenups. Some couples want prenups to reflect a preference that a spouse (usually the one coming into the marriage with fewer assets) receive maintenance only if the marriage lasts for a certain number of years, and possibly incrementally more maintenance based on the number of years the couple is married above that initial threshold. Maintenance language in prenups can be included, but complex and convoluted maintenance plans should be discouraged, especially ones that weave together unborn children and maintenance. And it is worth noting the New York judges often disregard prenup terms about maintenance.

The role of the prenup is not to give spouses a blueprint for micromanaging their lives. The prenup is a means of ordering expectations.

What are the big ticket items in prenups for couples in their 20s and 30s?

In many cases one fiancé will request a prenup at the behest of his (or her) family, because she expects to inherit money and/or property and his/her family wishes that he/she retain his/her assets in the event of divorce. In those cases the lawyer of the "moneyed spouse," who will likely be the drafter of the prenup, will devote many clauses to ensuring safeguards; when the lawyer for the "non-moneyed spouse" reviews the prenup, it is her job to ensure that her client receives appropriate safeguards as well.

The marital home is a standard prenup topic. Sometimes one spouse will enter a marriage with a separate property house or apartment. The couple must then decide whether the property will become "marital property" upon marriage. If not, and if the property increases in value, either due to market forces or due to improvements (possibly including the active efforts of the other spouse to participate in renovations), will it remain separate property at divorce? What if the couple sells the property during the marriage and upgrades to a new property? These are issues couples typically consider in prenups.

What is your personal philosophy about prenups?

The wishes of my client guide me. If my client has significant assets and expectancies and wants an ironclad prenup, so be it. If my client simply wants to memorialize expectations related, for example, to a piece of real property she owns before the marriage, that is her choice.

I hold a view not usually attributed to family and divorce lawyers: marriage is a romantic and stabilizing institution. Close to 50 percent of New York State marriages last until the death of one of the spouses. This is a high -- and reasonable -- percentage for an intense lifetime commitment. Thank goodness we're no longer operating in the context of a 1950s ethos, when divorce-related stigma made it nearly impossible for unhappy spouses to escape unhappy marriages. The decision to divorce is difficult and painful and personal, and it is important to make the process easier for spouses who go this route. Prenups facilitate this. They motivate important conversations before marriage, order expectations during marriage, and define an escape valve if one is needed.

Prenups promote happy marriages. Prenups are romantic.