The Prenup: Good Idea or Weird One?

JANUARY 27, 2014
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Photo by Emily Long

Three and a half weeks to go until the wedding.  Everything is planned, all of the response cards have come in, you are looking forward to your bachelorette party, and have started packing for the honeymoon in Bali.  What could go wrong?

That night, you come home from a long day of work when your fiancé sits down on the couch next to you and says he wants to talk about something.  “Uh, my family is pressuring me… they really want us to have a prenup.  It’s no big deal, they just want to make sure that if we divorce – which we won’t – you won’t be able to get a piece of the family business.”  You are stunned, take a minute to compose yourself, and say, “Well, I wouldn’t want any piece of your family’s business, don’t they know that?”  He starts to fidget and says, “I know, and they know, but cousin Ken got a divorce and there wasn’t a prenup and it was a nightmare because she wanted to go after his part of the business and so they’re worried.”  You think for a minute, become really irritated, grit your teeth and say, “Okay, sure, no problem.  I’ll sign it.”  He looks relieved.  “Great!  I will have the lawyer e-mail it to me so I can send it to you.  He said we can go to the bank to sign it together.”  You retreat to the bathroom to splash some water on your face.  Lawyer, what lawyer?  How does he have a lawyer before he’s even spoken with me about this?  It’s three weeks before the wedding and he’s bringing up the issue of a prenup now?!

Is this obnoxious?  Or is it a good idea? 

Maybe both.

Let’s start with what’s obnoxious.  I don’t like his presentation.  It could have been worse if he presented the idea by singing Kanye West’s “Gold Digger” when you were out with friends for karaoke night, but that’s probably it.  I also don’t like that he brought it up 3 weeks before the wedding, because it might not give you adequate time to find an attorney.  Substantively, however, this is a bona fide reason to request a prenup.  If you did end up divorcing, his family would understandably not want you opening up their books and records and would not want to be dragged into court to testify about the financials of the business.  Also, they would not want to potentially have to pay you.  But is this fair from your side?

What if you are married for 30 years and the business grows in large part due to your husband working 70 hours a week while you raise the kids?  Why shouldn’t you get something out of it?  Should you sign this prenuptial agreement without talking to an attorney?  No.  Should you agree to sign a prenuptial agreement at all?  It depends on whether your interests are protected in the same document.  Meet with an attorney to discuss your options.  In some instances, it might be fair to say that if you divorce before five or ten years, you get no part of the business, but if you are married longer than the agreed-upon period, you would get a payment.

Every contract needs something called consideration (generally speaking, a benefit that is bargained for between the people or entities entering the contract), which means that the prenuptial agreement must provide something beneficial to you – not just your intended spouse – in order for it to hold up in court.  This is when you can use it to your advantage.  Let’s go back to this scenario where your fiancé wants you to agree you will get no part of the family business in the event of a divorce.  Do you plan to be a stay-at-home mom?  Then bargain for a generous amount of spousal maintenance for a long period of time in the event of a divorce.  Or, are you a Wall Street executive who will likely receive some pretty large bonuses?  Bargain that your bonuses will remain your separate property so long as you get no piece of your future spouse’s business.

Assuming that you want to marry your partner as much as your partner wants to marry you, you should be able to reasonably and rationally assert your entitlement to something good if your intended spouse wants to prevent you from receiving what could be a nice future payout in the event of a divorce.  The trick is knowing you have rights too!  So, while it’s tempting to be offended by the subject of a prenuptial agreement, use it to your advantage to bargain for what you want and deserve.

[Now for the requisite disclaimer: Nothing Jennifer Kouzi authors on this site should be considered legal advice, and no attorney-client relationship has been formed by virtue of you reading the above post. To contact her for individual inquiries, call 212.921.5526 or e-mail her at jennifer@kkbllp.com.]

 

 

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