Wedding Planning? Consult with a Divorce Attorney First!

You’re engaged – Congratulations! After calling your family and friends, you probably Googled how to plan the perfect wedding, which led to lots of websites advising you on what steps you need to take. Somehow, between visiting venues and browsing Instagram and Pinterest for floral displays, the wedding planning checklists leave off what should become a standard part of preparing for marital success: consulting with a divorce attorney about whether a prenuptial agreement is necessary.

I know that this sounds like a shocking piece of advice. What could be worse for romance than visiting a divorce lawyer? Just like the wedding planners are putting into place all the components of a beautiful ceremony and the celebration thereafter, a consultation on your rights and obligations upon marriage can help couples think expansively and thoroughly about the future they are building together and how they want to prepare for it. Prenuptial agreements are not just for people with big family trusts or who are embarking on their sixth marriage – they are helpful to many other couples as well.

Prenuptial agreements are contracts that set forth the legal rights of two parties and financial arrangements including the distribution of each party’s assets in the event of divorce and, in some instances, death. Full disclosure: I am a divorce attorney who married without a prenuptial agreement. This was a deliberate decision on my part and is not one I regret in any way. I do not think that every person should have a prenuptial agreement, but I do think that this decision should be given appropriate consideration and is unique to each couple. For the countless clients I have represented in divorce, I wish they had met with a lawyer prior to their weddings so that they could understand how marriage fundamentally changes their legal relationship. Of course, in hindsight, each would agree that it is well worth the one or two hours of time to sit down with a divorce lawyer to help decide whether a prenuptial agreement makes sense. There’s a reason that clients often return for a prenuptial consultation prior to remarrying.

Here are three common misconceptions where having a prenuptial agreement may be helpful:

1. Keeping your finances separate doesn’t necessarily mean that splitting them up will be easy. I cannot tell you how often I speak with a potential client who is exploring divorce after a relatively short-term marriage who starts out with “this should be simple because we keep our accounts separate.” This only makes it simple if both parties earn the same income and spend money in the same way. When it comes to marital property, account ownership generally does not matter. For example: your spouse pays down their student loan every month while you pay into your retirement account. If you split up later, the increase in value of your retirement account is subject to division as marital property whereas their student loan payments simply reduced their premarital debt and doesn’t necessarily offset your retirement account growth. A prenuptial agreement can clarify who retains which accounts, without requiring a thorough accounting.

2. Everything you own is not automatically divided 50-50. The distribution of property acquired during marriage is equitable, which is not necessarily equal. The idea that you can simply divide everything in half and walk away only works if you both agree to that, in writing, prior to marrying. Typically, when a relationship is ending, it is because you cannot agree. A prenuptial agreement made in happier and calmer times can save on legal fees to negotiate the distribution of property in the event of a divorce.

3. Just because you owned something prior to marrying or acquired it from your family does not mean that it remains yours. When it comes to your grandmother’s bed, it is easy to say that it remains your property, but what about the family beach house in Avalon? While the initial gift remains yours – so long as it is not retitled jointly with your spouse – the increase in value of that gift is marital property, which means you may need to pay your spouse to retain a piece of family real estate or an inherited retirement account. Prenuptial agreements are a must when significant assets exist, or are anticipated in the future.

The good news is that each of these issues can be resolved up front with a prenuptial agreement, which can be as broad or as tailored as is appropriate to fit your situation. For example, the agreement could only encompass a share of the family beach house, or an inheritance, or could only address property distribution but remain silent on alimony. Even if a prenuptial agreement is not appropriate, nearly every couple would benefit from having conversations about long-term economic expectations and decision-making. You selected an alternate location for your outdoor ceremony in case it rains, right? Think of a prenuptial agreement as an insurance policy in the event of a rainy day.

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