Congratulations! You’re engaged. You’re on your way to walking down the aisle on the happiest day of your life. There’s a lot to do to plan for the wedding. Find a location, book a caterer, find a dress, pick out a cake, and oh so much more. But there’s one more thing engaged couples should think of, and that is a prenuptial agreement.
Although the idea of asking your fiancé for a prenuptial agreement can feel like it is killing the romance and the flutter of preparing for your wedding day, it is a wise thing to consider, to protect each other for after you say “I do.” With divorce rates hovering around 60%, a prenuptial agreement is a tool to protect yourself in the even that “I do” turns into “I don’t.”
But how should you approach this topic with your fiancé?
First, start discussing the idea of a prenuptial agreement shortly after you get engaged. This way, you have the opportunity to discuss this in detail, and have time to negotiate, before you get married. Also, the longer you wait to discuss the idea with your fiancé, the more your fiancé can feel pressured to enter into the prenuptial agreement right before the wedding. If your fiancé fees pressured or coerced, there could be room for the prenuptial agreement to be challenged in a divorce proceeding.
Second, when discussing the terms of the prenuptial agreement with your fiancé, be honest as to why you want the prenuptial agreement. Is it to protect a substantial inheritance or an interest in a trust that you already have? Do you have business interests you want to protect? Do you have children from a previous relationship you want to provide for? Or is your family prone to divorces, and you just want to be prepared “just in case”? Regardless of the reason, be straightforward with your fiancé.
Third, when drafting and negotiating the agreement, make sure there are no hidden secrets. Under Massachusetts law, a prenuptial agreement must be fair and reasonable at the time of execution. Secondly, the agreement must be fair and reasonable at the time of entry of the judgment of divorce nisi. Massachusetts law also requires that a couple to a prenuptial agreement make a full and truthful disclosure of their respective assets and liabilities. This ensures that there are no secrets or surprises at the time the couple is married, and later if and when they divorce. So when the agreement is being drafted, don’t try to hide anything. Make a full disclosure of your finances, and also of your circumstances. This will ensure that there was a full disclosure, and won’t leave the agreement open to attack during a divorce.
Fourth, be willing to negotiate and compromise. Marriage is all about compromise, and so is a prenuptial agreement. Like any other contract, there are negotiations in drafting a prenuptial agreement. Don’t go into drafting an agreement thinking it is your way or the highway; be willing to negotiate and compromise on certain issue.
Fifth, make sure you have an attorney work with you on the agreement. Each party should have their own legal counsel, given them advice and weighing in on the terms of the agreement. Massachusetts law has strict requirements of what makes a prenuptial agreement enforceable. Having an attorney involved in the drafting process will help ensure that the agreement will remain enforceable down the road.
Sixth, remember your goal is to get married. The prenuptial agreement will protect you “just in case,” but ultimately your goal is to get married and live happily ever after. The agreement is only there to protect you if happily ever after does not turn out to be. Thus, be reasonable when working on the agreement. This is the love of your life you are working with, so keep that in mind when working through the prenuptial agreement. Hopefully you will never need the prenuptial agreement, but it is always good to have.
Prenuptial agreement may not seem too romantic, and a couple, frankly, does not want to consider the possibility that the marriage could fail. However, a prenuptial agreement is quite practical, and protects both individuals before, during, and after the marriage.