While Prenup Misconceptions Abound, Reality Offers Guiding Light

Prenuptial agreements get a bad rap.

For whatever reason (celebrity drama, movie plotlines, click-bait headlines), prenups have garnered a reputation for destroying the very bedrock of the bond between two people. The seemingly destructive power of the prenup tends to blur the truth.

Prenup negotiations can be creative, romance-affirming, and bond-solidifying for any marrying couple.

Let’s take the most common misconceptions about prenups and shine a light:

Prenups are Romance Killers. Disagree.

Prenuptial agreements allow couples to decide for themselves how to conduct their relationship, and can even discard basic principles of state law in favor of their own preferences. State Legislatures determine the rules for marriages and domestic partnerships – rules not always logical or reasonable to every person who marries. What could be more romantic than a couple working together to chart their own course in life? To cast off antiquated notions of what marriage should be and make their own rulebook? That is the definition of empowerment, and empowerment is nothing if not romantic.

Prenups are often unenforceable. It depends.

A prenup done badly could be unenforceable. But the Uniform Premarital Agreement Act (laws that govern prenups) has been adopted in over half of US states and has been proposed for adoption in several more. This means for most of us, as long as the terms of these rules are met, the enforceability of prenups is not the issue. The rules mostly concern whether the soon-to-be-spouses are apprised of all relevant information before signing, and that one spouse is not getting an unfair advantage over the other. Assuming the prenup has all of the required bells and whistles, enforcement should not be a problem.

Prenups cost thousands of dollars. Not necessarily.

Prenuptial agreements only cost as much as the time and complexity required in each situation. In second or third marriages, a prenup will have more moving parts to address mature estates with real property holdings, inheritances, business interests, and retirement accounts. In cases where spouses bring fewer assets or even children to the union, a prenup can be very simple and straightforward. While legal fees can vary (and you should ask about billing practices when interviewing family law attorneys), a prenup should not break the bank unless the spouses are very wealthy (in which case they have a much larger bank to break).

Only rich people need prenups. Every couple can benefit from upfront premarital legal conversations.

Every married couple has a prenup whether they know it or not. Enforced by our State Legislature, it’s called the Family Code – and most couples have absolutely no idea what the Family Code says or how it affects their individual relationships. Every couple can benefit from discussing and drafting a very simple prenup – after all, who wants our elected officials to decide how our individual property rights are determined, or how much money someone is going to get if the relationship falters? Those are very personal issues, and a simple prenup can vest the authority for that decision making in the people most affected by those issues.

It won’t happen to us. We hope not, but…

We live in an unpredictable world, and contingency planning is never a bad thing. Most people would never consider throwing everything they own on black in life’s game of roulette without a safety net of some kind. Sometimes life comes up red, after all. And when it does, a well drafted and thoughtfully considered prenup (or postnup) can ease the pain of an unexpected downturn in a relationship. So don’t turn your nose up at a prenup – they really are there to help you, despite what common misconceptions might insinuate.

Lawyerly last words.

Seek out solid legal advice before getting hitched – a thoughtful prenup can really get your marriage off to a great start! We advise clients to get started early, well before wedding planning begins. Each party should have independent counsel and be prepared to fully disclose assets, liabilities, and income. Take care to close all the loopholes and do not leave room for either party to argue about whether they acted voluntarily or signed a prenuptial agreement under duress.


A version of this content originally appeared in the Feb/March 2017 issue of Outword California magazine.



ABOUT THE AUTHOR: Neil M. E. Forester (@nmeforester) is Managing Shareholder of FORESTER PURCELL STOWELL PC, a Northern California law firm focused exclusively on specialized counsel for complex divorce and family law issues. He is recognized by the State Bar of California’s Board of Legal Specialization as a Certified Family Law Specialist. Neil regularly represents business owners, professionals, and other high net worth individuals (or their spouses) in divorce, premarital agreements, and related actions. Beyond his legal practice, Neil serves as Board Chair for WEAVE and NorCal Boxer Rescue. He can be reached at info@foresterpurcell.com or 916 293 4000. This information is general in nature and should not be construed as legal advice.
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