If you’re newly in love, the idea of a signing a prenuptial agreement may make you flinch. This is understandable, but while a prenup may sound unromantic, in practice, it’s one of the best ways to protect your good will.
Far from being a vote of no-confidence in the marriage, a prenup is a contract that helps clarify your views toward money and its role in your relationship, and can protect you emotionally and financially, should it end.
We routinely take precautions with other important, potentially risky actions. None of us gets into a car expecting to crash, but we all buckle our seat belts—just in case. Prenuptial agreements are similar, and important, considering that we know there is nearly a 50 percent chance of a marriage ending (and statistically, a 70 percent chance of a second marriage not lasting). One benefit of having been divorced already is that we can bring more realism to our next relationship. Realism is not the same as cynicism, and a prenup is one precaution it can be wise to take.
Here are five ways a prenup can reduce the unpleasantness of un-coupling:
1. It can establish your intention to take a collaborative route.
A prenuptial agreement cannot address child-related issues, such as custody or child support. But it can help protect you from fighting over these and other flashpoint, contested issues by setting the intention to resolve them (should a divorce occur) with mediation or a collaborative divorce process. Collaborative divorce lets you keep your discussions confidential, while also protecting you from the anger-inciting process of preparing for a court battle. Confidentiality clauses can go further and state that neither of you will disparage the other on social media, and even that you’ll delete pictures or references to the other person on Facebook, Twitter or Instagram immediately upon request.
2. It can establish a cap on alimony.
When it comes to alimony, even if you don’t agree to waive all alimony in the case of divorce, you may be able to agree on a reasonable cap on the amount and duration. These caps limit the exposure of the payer and put the recipient on notice that support will be limited, and primarily based on his or her reasonable needs. In Maryland, Washington D.C. and Virginia, for example, there is indefinite alimony for long-term marriages. I have had several cases where men paid $10,000 a month to an ex who then did nothing to become self-supporting. This is a big concern for high-wage earners, and nowadays, that can be the woman.
3. It streamlines property discussion.
It’s easy to get caught up in details of property—to feel a need to cling to physical objects during the emotional upheaval of divorce, or to worry that sharing will threaten your own financial stability. For these reasons, property division can be a major issue in divorce. While it’s not uncommon to argue about the value of property accumulated during the marriage, having a prenup can limit what is up for grabs. A good prenup clearly defines what you’re keeping as your own separate property. This might include inheritance, gifts, and premarital property. You will value these assets when you sign your agreement, but you don’t need to argue about them in divorce because you’ve already taken them off the table for negotiation. Fewer objects under discussion can equal fewer fights. You can also agree up front that all marital property will be divided fifty-fifty, so one one is arguing over who invested how much in the acquisition of marital property.
4. It protects one person from the debts of another.
Prenuptial agreements also typically state that debt in one person’s name is solely that person’s debt in the event of a divorce—whether it was incurred prior to or during the marriage. This preempts the unpleasant claim sometimes made during a divorce that debt on one person’s credit card is actually marital because it was for family use, now subject to the divorce court’s reallocation.
5. It sets a move-out-by date.
Finally, as a step toward positively preventing a War of Roses scenario, where neither party is willing to move out of the marital home until the divorce is final, most prenups include a move-out provision. Simply stated, once one spouse notifies the other of the intent to end the marriage, the clock starts ticking for one person (already identified in the prenup) to move out, or for a jointly owned house to be sold immediately in the event one cannot buy out the other.
Everyone hopes for a happily-ever after, and prenups are intended to promote just that—whether you stay together or not. In the event your love story gets derailed, your prenup is there as a safety net to reduce the risk of a highly litigated court case and keep you from entering into the land of complete uncertainty where you don’t know what you get to keep, when/if you get to move out, how much you will have to pay exit the partnership or what process you will use to try and address all these issues.
Regina A. DeMeo is a nationally recognized matrimonial attorney and legal commentator. She promotes the use of mediation, alternative dispute resolution and integrative law skills to achieve optimal results in negotiated settlements for families in conflict. For more than 17 years, she has helped families in the Washington, DC area respectfully resolve their disputes, using litigation tactics as a last resort.