Articles Posted in Premarital Agreements

As I often explain to clients, it is far easier to get married than to get divorced. As probably the most common and incredibly complex contracts that a party can enter into, why is there no requirement for acknowledgement of the laws, obligations, and responsibilities? Why is there no arbitration or mediation clause?

It would be enormously helpful to prospective marriage partners to be informed about the financial and other considerations of the contract they are entering that is commonly referred to as marriage. Many married couples don’t understand that retirement plans and other assets and debts accumulated during the marriage are community property. Debt assumed during the marriage – even if in one party’s name – is a community obligation. If one party works and the other does not, the earners sometimes think their earnings are theirs alone.

There is insufficient basic information about the contractual rights and obligations that should be understood and agreed to before marriage. This information would resolve many problems if and when the marriage fails. And a standard arbitration or mediation clause that is typically found in most all other contracts would, in the event of marital breakdown, be the first step in an out of court process that would save the courts, and most couples, a great deal of time, energy and money. 

In California you can’t buy a house, or a car, or even join a gym without a multi-page contract, with various provisions in bold print, and initialed by the buyer.
 But marriage? All one must do is state they are not married to anyone else, sign as needed and pay the fee. 

Alas, common sense is not always common. With governments at all levels bought and paid for, reform in this area is highly unlikely as there are many groups with religious and economic interests in keeping marriage fast and easy. For starters, consider the wedding business itself. Talking about marriage more as an important contract between informed and consenting adults, rather than as the most transformative moment in one’s life and the Madison Avenue bridal magazines with emotion driven ads might lose some of their appeal. Then there is the religious concept that marriage is also a commitment to God, a timeless covenant til death do us part that can never be torn asunder. Nice idea, but not really. It is a commitment to whatever the parties believe it to be at the time it is made, nothing more and nothing less. It may involve God, but from what I have seen the presence of absence of God in one’s marriage is of little consequence to the success of the marriage.

So, I think it is high time to let go of our antiquated notions and recognize marriage for what it is – a contract between two individuals to love, honor and commit and all those noble ideals traditionally associated with marriage but also a clear understanding and written contract outlining the rights, responsibilities and obligations.

To most couples planning to marry, marriage is a loving commitment between two people who want to share the rest of their lives. Under the law, however, marriage is a contract between two people … not a contract about love, but a contract about the legal and financial rights and obligations of marriage.

It isn’t easy to discuss marriage as if it were a business, but when considering a premarital (or prenuptial) agreement, that is precisely the right approach. A premarital agreement isn’t a predetermined exit plan and neither does it reflect a lack of faith in the relationship. It simply protects against unfortunate future circumstances that can, and frequently do, happen and is a most worthwhile effort to address the legal and financial issues of the marital contract.

The following suggestions may help you and your future spouse have a constructive conversation about what kind of premarital agreement would be right for your marriage and your relationship, as well as the role of money in your lives together, and if done right such a conversation can ultimately be more helpful in securing a strong foundation for the marriage than it’s actual, intended use.

Discuss the Issue Early

It is very important that you don’t wait until four weeks before the wedding to discuss these issues. The earlier these topics are explored, the better.

Ask, Don’t Assume

People have all kinds of ideas about premarital agreements, and often they are biased biased or incorrect or based on publicity involving contentious, high-conflict celebrity divorces. You and your spouse may have very different ideas about this issue and it is important not to assume you share the same ideas – ask.

Focus on Practical and Logical Matters, not Emotions

It’s difficult to talk about your relationship as if it were a commercial transaction, so it is helpful if you can both agree to be logical rather than emotional in discussing these issues.

Ask A Third Party

It is most always helpful and advisable to consult with a legal professional, and perhaps a financial professional, to explore the benefits and to understand the legal issues. The better informed you both are, the easier it will be to reach a mutual and positive agreement.