Prenuptial Agreements: ‘Til Death Do Us Part...Yea Right!

“If you ain’t no punk holla we want prenup. WE WANT PRENUP!, Yeah It's something that you need to have, ‘Cause when she leave yo ass she gone leave with half” ~Kanye West, “Gold Digger”

Planning for Failure? No: Planning for Future.

The idea that a pre-nuptial agreement is conceding that the marriage will eventually fail is prevalent amongst those that are against them. However, I feel that the idea that having an agreement in place in case the parties later divorce is not planning for failure as much as it is just an example of smart planning, especially in light of the divorce rate in the United States. To be sure, a prenuptial agreement is void if a party signs it under duress, if full disclosure has not been revealed, or if a party is not afforded an opportunity to consult and review the agreement with their own legal representation. One of the most important reasons for obtaining a prenuptial agreement is to gain a level of certainty concerning the future and the ability to make plans. Plan making and reliance on those plans is a paramount feature of contract making.

Reasons to Get a Prenuptial Agreement

There are a good number of reasons to justify getting a prenuptial agreement. These agreements are of particular benefit if either party is entering their second (or third, etc) marriage. The agreement benefits the party that either has a significant amount of assets before the marriage takes place, has significant inheritance prospects, or is simply a working professional. As previously stated, and most importantly, a prenuptial agreement helps both parties achieve a level of certainty and comfort for their own futures. This excerpt from a sample prenuptial agreement outlines the purpose of the agreement—full disclosure of financial history and assets in order to come together to plan for the future:

Each party has separate property, the nature and extent of which is fully disclosed in the statements of assets and liabilities. The parties are setting forth in this Agreement their respective rights in and to all property of either owned at the date of their marriage and in and to all property that may be acquired by either or both of them after their marriage. They are also setting forth their rights regarding spousal support or maintenance (retrieved 5/29/08 from http://www.deltabravo.net/custody/prenup.php).

Paul McCartney? & Heather Mills

When the media learned that Sir Paul McCartney? married Heather Mills, many wondered whether McCartney? and Mills had a prenuptial agreement in place. Upon learning that McCartney? did not propose an agreement, whispers began—four years later, the pair began divorce proceedings. McCartney? was worth over $1 billion (retrieved 5/29/08 from http://www.rollingstone.com/news/inbrief/story/10345310/paul_mccartney_foo_fighters_john_mayer_and_more) , of which Mills asked the count to give her about $250 million dollars. The court eventually awarded Mills a $48 million (£24.3m) settlement (retrieved on 5/30/08 from http://news.bbc.co.uk/2/hi/entertainment/7300931.stm).

To be sure, prenuptial agreements are not legally enforceable in the United Kingdom, where McCartney? resides. However, a judge is very likely to take the prenuptial agreement into account as the agreement is essentially a statement by both parties as to what their intentions are in the event of a divorce. The terms of the agreement would hold less weight if the financial circumstances have drastically changed from the time that agreement was signed. Moreover, if McCartney? had a prenuptial agreement in place and Mills tried to contest its terms, a judge may have questioned Mills as to why (s)he should not enforce the agreement that both she and McCartney? reasonably entered (retrieved from 5/30/08 from http://www.simkins.co.uk/articles/hwsPrenuptial.aspx). It is safe to say, though, that if McCartney? had not forgone the agreement in the name of everlasting love, the divorce proceedings would not have been as time consuming or financially wasteful.

The United States and State Law

Unlike the United Kingdom, prenuptial agreements are legally enforceable in the United States. However, it is not the intention of this essay to make prenuptial agreements seem like a panacea to relieve all divorce proceedings and arguments concerning the splitting couple’s financials. To be sure, prenuptial agreements are only valid and enforceable according to specific state law. As noted above, a judge does have discretion with regard to upholding the tenants of the agreement. For example, while New York is more lenient with enforcing the agreements, Connecticut courts have been known to use their discretion to determine whether the agreement was entered into under fraud or duress. Therefore, it is important that one understands the state law under which the agreement functions. Yet, the point remains that these agreements (if conscionable and in accordance with the requisite state law) are enforceable. Relying on the agreement and its terms in the case of divorce would enable both parties to have peace of mind regarding their financial futures.

Conclusion

Marriage is deemed to be the ultimate expression of love and commitment to someone. However, love and commitment aside, marriage is at its core a contract. As a contract, one should not enter into marriage without proper thought to possible “what ifs” and protecting oneself and one’s assets, financial or otherwise. Love and commitment do not pay the bills or sustain financial stability. Money is a huge part of the marital relationship. When a couple comes together in this way, they are merging and forming a small business with children, a house, a car, and other things. Conversations about money should take place a substantial amount of time before the wedding and during the time that plans for the future are being made.