THE BLOG
02/26/2016 12:10 pm ET Updated Dec 06, 2017

How to Prepare for THAT Prenup Conversation

So it's your wedding day and you're about to say those two little words. There's something niggling at the back of your mind that you've haven't got around to organizing... Food? Ordered and paid for. Presents for the in-laws? Check. Prenup? Ah. Oops.

It's easy to put off important elements of wedding planning that are less fun. I'll admit I'd much rather go to a cake tasting than talk to my intended about money and what happens in the eventuality that we decide to go our separate ways, and I'm a divorce attorney! I have more uncomfortable conversations with people by 10:00 a.m. than most people have in a month.

You can always do a postnup but let's be honest, when you're back from honeymoon and the tan's starting to fade, it's easy to get caught up in the stresses of everyday life. From a practical legal standpoint the enforceability of a postnuptial agreement is far more controversial in New York than a prenuptial agreement. And, it's much wiser to be aware of your partner's financial habits before getting hitched. If you've religiously paid off your credit card in full every month, it can be grating to see that your spouse has racked up thousands in interest thanks to their decision to make minimum payments.

So here's how to bring up the topic, WITHOUT using the words, "By the way, when we divorce I'm keeping the house, darling."

  • Be straightforward. Just get to the point. Show your spouse that you're behaving in a clear-headed and sensible manner about this potentially awkward topic. They'll respect you all the more for it. Chances are, if they read the papers (or live anywhere other than a cave) they may be having the same thoughts, but were reluctant to bring it up.
  • It's all about timing. In the middle of a "heated discussion" about finances? Don't throw the prenup into the mix just right now. Having lunch with the soon-to-be in-laws? Not a chat that Mom and Pop need to be part of. Remember when Carl and Ellie from Up (surely everyone's favorite romantic movie?) drew up their prenup? Me neither. It's not generally a conversation that comes up naturally when you're dazzled with love. Do a little forward planning and set the scene. Plan an occasion when you're both in a positive frame of mind, when you have the time and energy for an in-depth discussion. You might introduce it by talking about student debts or even your joint savings plan after the wedding.
  • Avoid beginning the conversation with: "I want a prenup." This is a sensitive subject and must be handled delicately so as to avoid arguments. After all, if you begin the chat by annoying your partner, you're hardly likely to achieve the outcome you want.
  • Blame me. Remember when you blamed your mom's broken vase on your (completely innocent) friend? Or when the dog ate your homework? Sometimes it's easier to take the heat off yourself. Saying that your lawyer recommended a prenup (and it's completely true - I do!) can make the conversation easier.
  • Remind your partner that ALL marriages end.  It may seem morbid to say it -- but all marriages end: either in death or divorce. You don't hope your spouse will die prematurely but chances are (if you're responsible) you still had a Will prepared. Why? Because you don't want the state legislature deciding your property rights when you die and belief you and your partner are in a better position to make those decisions together. A prenup is really no different. Why trust the legislature to decide your rights and obligations if you aren't fortunate enough to die?  Perhaps remind your spouse that legislators are elected officials and, at present, as a result of the electoral democracy Donald Trump is quite possibly 11 months away from getting the nuclear codes.
  • Reassure your partner. A lot. Let them know that your intention is to protect his or her financial independence, as well as yours. To keep the two of you, as a couple, in control of your finances and property rather than the Courts or the state.
  • Be like a window: transparent. This is the time to be 100 percent honest with your partner. Often our thoughts about prenups have been shaped by our parents', siblings' or even friends' marriages. Share this with your fiancé(e) so they fully understand that this isn't the final stage of your dastardly plan to acquire all their hard-earned money and possessions. Be honest about what is important to you, and why.
  • Use this as an opportunity to talk about expectations.  In the event the two of you split up you may be surprised at how much you share the same concerns. Who would keep the apartment? How would the one who leaves the apartment pay for movers or a security deposit? This is the kind of stuff you can discuss and include in your prenup. Take the fear of homelessness out of your marital anxieties.

     

    If there's an economic disparity between you and your spouse you've got different concerns but they're born of some of the same sensibilities.
    If you're the "monied spouse" you want to know how much you would be "on the hook" for if the two of you split up. Most likely you aren't suggesting if you break up your partner should be out on the streets eating cat food - but you don't want him or her to be eating caviar while you're struggling to pay bills. If you're the "non-monied spouse" perhaps you want to ensure that it's okay to sacrifice your career status to raise children or pursue other interests secure in the knowledge that your soon-to-be-spouse is taking care of business. You might not be looking for the marriage equivalent of a "golden parachute" in the event of divorce but you might be looking for some confirmation that you won't leave the marriage with less than what you have when it started. There is likely room for compromise on these issues and perhaps having a discussion about what you both want and need financially in a marriage partnership is precisely the kind of thing two people considering getting hitched should do!
  • Listen. It's the best way of avoiding misunderstandings. If people would only use their ears as much as their mouth, the world would be a much happier place, trust me on this! Ask them their opinion, their hopes, and do some research together. Chances are, neither of you have much practical experience with prenups, so you can learn together.
  • Don't get angry. You might not get the response you want, but it's important to stay calm. Your partner might not want to hear you. (In which case, it's time to start working on those communication skills, folks.) They might be insulted that you'd even think of divorce. One the one hand, this is understandable, but it's time to get real. Forty-five percent of marriages end in divorce. Being prepared is essential, for both of you.
  • Be prepared to try again. So you didn't get the result you wanted? Don't give up and hope it all works out for the best. It's important that your wishes are respected in this relationship too. Allow your partner time to cool off and re-evaluate your points. Consider the services of a mediator to help both of you air your thoughts, without things turning sour.
  • Have faith. If you're seriously considering marrying this person let me tell you, at the outset, it's important that you two can have a difficult conversation when necessary. It's important to have the ability to upset or disappoint your spouse when necessary to honestly express your needs and feelings. Start warming those skills up early before you get hitched. This is as bad a time as any to see that, if you're doing it right, you can be scared or upset and still be very much in love.  

 

Financial conversations can be hard when you're in a relationship, whatever stage you're at. Bringing up a prenup needs you to have lots of hats on - your sensitive hat, your rational hat, and your honest hat. But the good news is it can be done without causing offense. Better, it can help you build trust and solidify your relationship. If you need it - great, you're covered. And if not, then you two lovebirds have begun your lives together in the best possible way - by being open and honest about the tricky stuff. It's win-win. It's better to have a prenup and not need one than to need a prenup and not have one.  

 

Respectfully,

James J. Sexton