Q. My fiancé and I are planning to be married on New Year’s Eve. He just announced that we need a pre-nuptial agreement. I’m shocked. We have been living together for the last five years and are only getting married now because we decided to have children.
We both work and live comfortably contributing relatively equally so I am struggling not to feel offended by his ask. At the same time, I’m not sure how big a deal it is. How common are pre-nuptial agreements and why do people generally have them? Do the courts typically enforce them if things go wrong or are we just wasting money up front that we will also have to spend later if things go badly?
A. Pre-nuptial agreements are most common in situations where people are entering a second marriage and have children from your first marriage who they want to leave their assets to. They are also common in first time marriages where one party stands to receive a sizable inheritance and/or there is a family business for which one party works. In those specific situations people generally identify their respective separate assets which they contract to remain separate in the event of a divorce. You can also use a pre-nuptial agreement to do some basic estate planning.
I don’t know whether you and your fiancé have ever discussed inheritances, but it may be that he is asking in an effort to protect an inheritance. It may also be that he is asking because his parents are divorced, and he saw the difficult process first-hand. Bottom line, before you get offended, have an honest conversation about where this is coming from.
Pre-nuptial agreements are enforced by the court so long as it is determined they are “fair and reasonable” at the time of execution and “conscionable” at the time of enforcement. Of course, the court doesn’t even look at these tests if there is no dispute over the terms – which is the ultimate goal.
Assuming you agree to his request, you should consider tacking on the years you lived together in defining the length of your marriage for alimony calculation or sunset clause purposes.
Email questions to whickey@brickjones.com