Pre-Nuptial Agreements: Considerations

You’re in love and you’re getting married. The farthest thing from your mind is an agreement describing how to divide your worldly goods just in case the marriage doesn’t work out or one of you dies.

A prenuptial agreement? Talk about getting off on the wrong foot. Not exactly a romantic beginning! Why do such a thing? The answer is simple. You don’t want the law to dictate who gets what if the marriage ends.

The solution is to find an experienced mediator who is adept at guiding couples to think in practical terms. A properly executed prenuptial agreement can safeguard assets, protect loved ones, keep a business in the family, or streamline divorce proceedings.

Interestingly, pre-nuptials were once almost the exclusive preserve of the second marriage group, a group trying to preserve their wealth for their children and/or to protect their assets from a future divorce. Burned once by loss of assets to divorcing spouses, this group vows to be proactive. Their intent is to insulate themselves from the angst of divorce negotiations by preordaining who will or will not get the booty. Today, although the previously married are still the predominant prenuptial advocates, they are being joined in growing numbers by the first-time married set. This new group is composed of those who worry about divorce, particularly if they are, or anticipating being, beneficiaries of moneys or assets from gifting or inheritances. Parents of grooms and brides increasingly request or, even demand, proof that moneys given or bequeathed to their children will not find their way into the estates of ex-children-in-law.

Couples contemplating a prenuptial agreement are rarely in conflict. They are just practical.

You may want to consider a Prenuptial Agreement if you or your partner wishes to be proactive or has:

• A prior marriage
• Inheritances
• Substantial assets
• A business
• Children from a previous marriage

In 2023, The New York Times published a series of articles on the subject, presenting tales of “ordinary” people embracing the concept of prenuptial agreements. The question of whether a prenuptial is good for you and your future spouse needs to be answered. Consider also those who may follow this path:

• Couples where one individual or both parties have children from prior marriages or relationships and wish to protect their children’s future in the event of death and/or divorce.
• Couples who are marrying after having established (one or both) financial wealth, or simply financial independence, and wish to maintain their financial independence during the marriage.
• Couples where one party or both anticipates receiving, during the marriage, gifts and/or inheritances and wish to retain those assets in the event of death and/or divorce.
• Couples whose families (one or both) require protection of inheritances in the event of death and/or divorce.
• Couples who wish to create an agreement for the present with terms for changes over time, rather than rely on both parties’ consent to fashion a post-nuptial agreement in the future.
• Couples who want to set out terms for how they will manage finances during the marriage.

Truthfully, anyone and everyone can elect to create a prenuptial agreement for a variety of personal reasons. These agreements do not go to court and therefore may never be enacted or contested. Many prenuptials are ignored, even in situations where there are divorces. Some are replaced by post-nuptials; others no longer seem relevant or important. Perhaps, for some individuals, the value of the prenuptial is to begin a dialogue between future partners on their priorities and needs, not only about money but also about roles and concerns for the present and the future. The agreement, in and of itself, may be less important than the sharing of feelings and facts. Here mediation offers a confidential and safe environment to broach difficult topics and reach decisions.

At the Centre for Mediation & Dispute Resolution, we can assist you in thinking carefully about all of your options.