The Case for Prenups

written by Jim Duzak |

In an earlier column, I discussed some of the reasons—primarily psychological ones—why the big majority of couples don’t get prenuptial agreements . Today, I’d like to offer a few reasons why couples should have one.

One big reason is that you get to determine your own destiny, if and when you decide to divorce. A couple can tailor their prenuptial agreement to fit their own unique circumstances and values, and even, to some extent, override the laws of their state. For example, if a couple agrees in their prenup that no alimony will be paid to either party (or, conversely, that a certain amount will be paid for a certain period of time, regardless of need), that provision would normally be upheld by the divorce court , even if a strict adherence to the alimony statute might produce a different result.

Or a couple may agree in their prenup that if one spouse becomes a stay-at-home parent, that spouse’s “contributions” to the marriage will be valued equally with those of the working spouse. In states where such contributions have to be proven in court, such a provision would eliminate the need to spend a lot of time and money trying to convince the judge, and would also eliminate the uncertainty of how the judge would rule on the issue.

In general, the only issues the courts will not let couples determine via prenuptial agreements are those involving children. Couples cannot determine custody, guardianship, visitation (“parenting time”), or child support issues in advance; the court will always make an assessment of the situation at the time of the divorce. But, with regard to financial issues that solely involve the husband and wife, most courts are going to approve a prenup , provided, of course, there was no fraud or undue pressure involved in the preparation or execution of the agreement. (In order to avoid such issues, anyone considering a prenup should seek independent legal counsel as early in the process as possible. “Do it yourself” prenuptial agreements, or “Here: sign this” agreements executed on the eve of the wedding, are likely, if challenged, to be declared null and void).

Another reason in favor of prenups is that they simplify the often-confusing issues of who owned what prior to the marriage, and whether any previously-acquired property is intended to remain the separate property of that person after the marriage. If the parties have a prenup , each person can itemize his or her solely-owned property, and, presumably, specify that such property will be assigned to that person as part of the divorce order. In many divorce cases without prenups, the parties will argue endlessly over when and how some asset was acquired, and whether the person who acquired it intended it to remain as separate property after the marriage. Why go through all that?

Inheritances—both the kind you hope to receive and the kind you hope to pass on to any children you may alre...

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