by Laurie Israel

Created on: June 19, 2008

5 Realities About Prenuptial Agreements

Recently many articles have been appearing on the internet extolling the virtues of entering into a prenuptial or premarital agreement prior to your marriage. I offer the following reflections from my practice of law and work as a mediator to strongly counter the idea that prenuptial agreements have no "cost" and provide only benefit to a marrying couple. Both people entering into marriages should seriously consider what these realities are prior to engaging in the idea that a prenuptial agreement will be good for you and your marriage.

Reality 1: Negotiating a prenuptial agreement may irrevocably corrode your marriage and has the potential to make divorce much more likely.

The future spouse who pushes for a prenuptial agreement demonstrates a lack of faith in the other and a lack of commitment to the marriage. That prospective spouse also presumes a lack of fairness from the other in case of divorce.

There is usually an "initiator" spouse, and a "compliant" spouse. The negotiations will always be remembered as callous by the "compliant" spouse. The dynamics of the negotiations set up a bad pattern for the marriage.

Negotiating a prenuptial agreement is not romantic and can destroy a portion of the couples' love forever. It is a harsh business negotiation, made harsher by the lawyers who must be involved, because the agreement is generally not enforceable without involvement of separate legal counsel.

Marriage is a mixture of a complicated set of laws, customs, expectations, and culturally-based understandings. A premarital agreement will upset this balance in unexpected ways and is bound to have unintended consequences.

Most lawyers representing parties in prenuptial agreements have no sensitivity to the harm they cause the couple and simply act (or pretend) as if it is purely a business deal. Marriage is not a business.

Often the initiating party (or their lawyer) says, "You can just put the premarital agreement in a drawer and forget about it." That is not true. The premarital agreement cannot be forgotten and is presumptively legally binding as soon as it is pulled out of the drawer.

The initiator of a prenuptial agreement fails to trust and appreciate the balance of good common sense and equity embodied in state divorce laws. These laws were carefully developed during a long period of time and are designed to provide for fair solutions to all aspects of divorce, including the financial elements.

Many things, unforeseeable

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