Prenup in the US: Why being so wary of it can be wrongParag Narang | Updated: 18-05-2020 21:57 IST | Created: 18-05-2020 21:57 IST
According to a survey conducted among OnlineDivorce.com users, only about 7% of married couples enter into prenuptial agreements. Since 2015, this number has increased from 4% due to millennials who are considered to be more pragmatic and cautious when it comes to marriage, often choosing to marry later in life when they already possess separate property, but the rate is still low.
So why are prenups so underestimated in the US? And what issues does the prenup actually cover?
Things to consider about a prenup
The Uniform Premarital Agreement Act was announced in 1983. A premarital agreement is "an agreement between spouses made in contemplation of marriage and to be effective upon marriage." According to the law, the prenup must be signed voluntarily by both parties.
In the US, the spouses may include an extensive range of matters in the prenup, though typically it is associated with the property. Thus, a prenup can protect the property rights of each spouse, as well as the right to conduct any type of transaction concerning the given property in case of divorce, separation, death, or any other situation outlined by the parties.
Besides the property issues, the prenup can cover more intimate matters, such as compensation for adultery, regulation of the spouses' place of residence as a married couple in advance, or the way the children are going to be raised.
The spouses may also agree on the jurisdiction, based on which the prenup must be interpreted and where any potential legal proceeding (like divorce) must occur. If the spouses are residents of different states or are going to move, it may help them, in the future, to settle their differences in the state with more straightforward requirements or in the state where their trusted attorneys work. Since divorce law is state-specific in the US, and divorce requirements, as well as child custody and alimony laws, vary significantly from state to state, choosing the state of potential divorce can be a very prudent step.
About 25% of divorcing couples admit that they regret not drafting a prenuptial agreement in advance. Although there is such an option as "postnup," a contract the parties sign during the marriage, the spouses may already have a lot of property considered as marital by this time, which makes things more complicated.
So, in general, the very concept of a prenuptial agreement does not imply a precise regulation, and its content largely depends on the imagination, wishes, and individual circumstances of a particular couple.
Prenuptial agreement is limited only to the fact that it cannot include provisions that violate public policy or criminal law. Also, it cannot include child support issues, which shall be regulated by the Child Support Guidelines of the state where the divorce occurs.
Alimony issues may be included in the prenup, however, state law will still have the final say in this matter. This is another reason why it is prudent to choose a state whose Family Law is understandable and acceptable for the spouses.
And finally, by having a prenup, the divorce process will take much less time and money since the spouses have already agreed on the terms of their separation. If a break up is inevitable, this will at least allow everyone to avoid extra stress, court hearings, and attorney fees.
Prenups - drawbacks and unobvious benefits
Despite the consistently high divorce rates in the US, every couple hopes that divorce won't happen to them. Despite all the advantages of a prenuptial agreement, one of the main arguments of people who treat it cautiously or very negatively is that "prenup kills the romance." No one wants to think "what if" when everything is so good in the present, and moreover, to spend money on a lawyer and a notary to discuss unpleasant details and possible problems.
Undoubtedly, the decision to enter into a prenuptial agreement is a personal choice. But let's be honest, romance is killed by something else, which leads to a breakup. A prenup saves the spouses' relationships, as well as money and nerves, much more often than it harms them. Divorce is always painful, but in the end, no one is safe from this experience. And when it comes down to it, the prenuptial agreement helps to get through the divorce process with less loss, and ideally as friends that can maintain a healthy relationship and cooperate to raise any children from the marriage.
Unfortunately, situations exist where the spouses break up peacefully, but as soon as the trial begins, disputes arise one after another causing a snowball effect and releasing ill feelings. Often, lawyers play an essential role in this conflict, like in the movie "Marriage Story." And sometimes, fear of staying at a disadvantage forces a person who is already experiencing stress to not only defend himself but to go on the attack.
A pre-drafted contract often helps a couple to avoid escalating conflict during a divorce. Moreover, the fact that this agreement was signed by happy and loving partners often makes its provisions much more mutually beneficial, fair, and humane than when disputes are left to be settled as bitter, former lovers fighting in court.
Thus, the prenuptial contract should not be stigmatized. Such a complicated step indicates much more respect for the partner and relationship than the superstitious fear of raising this delicate issue before the wedding.
Some marriage counselors advise couples thinking about signing a prenup to treat this discussion as a test, similar to the first family negotiation. After all, family life involves many complicated issues that will have to be addressed together, so why not practice?
For starters, both partners should be in favor of such a decision. Otherwise, nothing good will come of it. Both parties should understand that this is not a matter of mistrust, but rather just a pragmatic procedure. The discussion of the provisions of the contract should be taken as an opportunity to understand the future spouse better and to learn more about future plans regarding career, children, business, place of residence, and other essential matters that have not yet been addressed.
There is no one path for everyone. Just as marriage does not guarantee love forever, divorce does not guarantee hatred. The prenup, in turn, does not guarantee anything other than what is written in the contract. However, since divorce rates are high in the United States, couples should learn more about and carefully consider various solutions that may be suitable for our particular situation, without being guided by fears and superstitions.
(Disclaimer: The opinions expressed are the personal views of the author. The facts and opinions appearing in the article do not reflect the views of Devdiscourse and Devdiscourse does not claim any responsibility for the same.)