(Plus Some Important “What Ifs” to Understand)
After a candlelit dinner at La Grenouille with the love of your life, the two of you stroll across Central Park’s Bow Bridge. Spring is in the air. You’ve been planning this moment for months, and she looks as beautiful as the day you met. You get down on one knee to pop The Question. Tears form in her eyes, and she embraces you with an emphatic “Yes!” Best moment ever! Totally nailed it!
But you keep talking, and just a moment later, before you know it, her eyes narrow as she shakes her head while beginning to back away. All seems to go silent–except you could swear that you hear the distinct sound of a record scratch. What just happened?
After popping The Question, you popped another question… “how about signing a prenuptial agreement?” Totally wrong time. Total wrong way. Epic fail.
Nothing can spoil a romantic engagement story quite like a prenuptial agreement. The word “prenup” may in fact be the most unromantic phrase in the English language–and asking for one can be scary!
There can be no dispute about the benefits of scheduling time with a prenuptial agreement lawyer. A prenuptial agreement can simplify a divorce, address how property will be distributed, and how much—if any—spousal maintenance will be paid. It can also address how expenses will be paid and assets acquired during a marriage. But, requesting one is difficult as the agreement contemplates that the impending marriage will fail and the parties will divorce.
Asking for a prenup on the eve of marriage, when you are pledging your love, may cause your fiancé to feel as if you don’t trust him or her or that you’re anticipating a divorce. The request could result in suspicion, hurt feelings, or even damper the romance. For these reasons, popping the prenup question has to be done with finesse, sensitivity, and tact.
Keep reading to learn how to ask the right way, know what happens with a torn-up prenup, and other scenarios.
Different Types of Prenuptial Agreements
As you may have guessed, there is more than one type of marital agreement. What are the different types of prenuptial agreements? Good question. They are:
- A financial agreement drafted in anticipation of marriage (ie prenuptial agreement)
- A financial agreement made during a marriage or before or after separation (ie a postnuptial agreement)
- Separation or settlement agreement- A financial agreement made after an order for divorce
Although a prenuptial agreement lawyer can draft a marital agreement during a marriage or after it has ended, drafting a prenup before marriage is by far the most straightforward and clear-cut agreement. So, how should one approach this loaded question? Let’s begin.
Six Powerful Strategies for Approaching a Prenuptial Agreement
1. Express Your Love and Commitment
It is imperative to explain that your request for a prenuptial agreement is not an indication of a lack of love, trust, or commitment. It is simply a way to protect each other in the event that the marriage does result in divorce. Express that you have no reason to believe that the marriage will fail but the agreement is there to simplify matters, just in case.
2. Talk About Your Children
If you have children or other financial commitments from prior relationships, it is important to help your future spouse understand that you have existing financial obligations and will honor them just as you are making commitments to them.
3. Own Your Decision
While you can probably provide examples of friends and family who have a prenuptial agreement or know a couple who could have benefitted from one, know that ultimately, it’s your decision to ask for a prenup. Use “I” statements, be assertive, and own your request. Hiding behind a recommendation from a family member won’t ease any tensions.
In some professions, a prenuptial agreement is a standard element of engagement. While you shouldn’t lean on your career as your reason for the prenup, you can explain that from your standpoint, the agreement is no different than a marriage contract or any other step involved in the process of being happily married.
4. Proactively Plan Financials and Offer Full Disclosure
A valid prenup requires complete financial disclosure. Assure your future spouse that you are being completely transparent, that you have put all your cards on the table, and that you are not holding onto any secrets. Stress that although you do not anticipate divorce, having an agreement in place can protect both parties and eliminate frustrations and potential attorney’s fees.
5. Mention the Prenup Early
It’s best to bring up your desire for a prenuptial agreement early in the relationship and prior to getting engaged to better gauge your partner’s feelings on the topic. Doing so sets the stage for honesty that won’t result in a last-minute surprise that creates lingering feelings of unease that will interrupt an otherwise beautiful wedding day.
6. Answer All Questions
Be a good listener when your future spouse voices concerns. Be attentive and answer to the best of your ability all of your fiancé’s questions. Explain that each of you should have counsel. If you are the one requesting the prenup and your fiancé cannot afford an attorney, volunteer to pay the attorney’s fees.
A Means to Strengthen the Relationship
Following the practical, common-sense steps above–well before marriage–is an effective way to establish clear communication and expectations between both parties as well as remove some of the stigma associated with a prenup.
Having said that, it’s impossible to predict how each person will react to this touchy subject.
What if My Fiance Rips Up the Prenup?
This doesn’t happen as frequently as it does in the movies, but it does occasionally happen! So is a torn-up prenup still valid? The answer is yes.
A prenuptial agreement torn in pieces and thrown off the honeymoon cruise ship is enforceable, so ruled a Brooklyn judge.
In a rather unusual case, as detailed in the New York Post, a couple entered into a prenuptial agreement that limited the wife’s right to maintenance and equitable distribution of the parties’ property. The husband, an owner of strip malls and hotels, convinced his then-fiancée to sign a prenup during their “whirlwind engagement of fewer than three weeks” by saying his father “threatened to cut him off” if he did not sign a prenuptial agreement. According to the wife and her then-attorney, the parties never intended the agreement to be enforceable and therefore did not even attempt to negotiate it–a point now denied by the husband.
While on their honeymoon, the parties ceremoniously ripped up their agreements and threw them into the ocean. The wife destroyed her original and the husband only a photocopy.
Twelve years (and a couple of children later), the husband sought to enforce the agreement when the couple eventually divorced.
In rejecting the wife’s theory that parties orally agreed that they would not be bound by the agreement, the judge noted that the prenup contained the boilerplate provision that:
“This Agreement contains the entire understanding of the parties with respect to the matters set forth herein, including, without limitation, the rights of the party with respect to the property of the other party. There are no representations, warranties, promises, covenants or understandings, oral or otherwise, other than those expressly set forth herein.”
Likewise, simply ripping up the agreement and throwing it into the ocean did not revoke the agreement. The agreement provided that:
“Neither this Agreement [nor] any provisions hereof, including without limitation, this article, may be altered, modified, terminated, or revoked, except by an instrument executed and acknowledged by both parties with the same formalities as this Agreement.”
The only way that this agreement could have been revoked was through a written, signed acknowledgment by both parties.
The lesson to be learned is that when your fiancé says: “My family is forcing me to sign a prenup, but I will not ever look to use it against you”–take it as a red flag and note that you are probably being lied to. If you divorce, the prenuptial agreement will be offered in court. Negotiate every term as if it means something because it does. If the agreement is to be revoked–revoke it with the requite formality!
What About Callous Conduct Leading up to the Prenuptial Agreement?
How do tactics and maneuvers come into play? Hardball negotiating and “callous” conduct leading up to the execution of a prenuptial agreement is a tactic that some parties resort to–but such conduct won’t be enough to invalidate a prenup, according to a recent New York court decision.
A “Very High Burden” to Invalidate a New York Prenup
New York courts will approach any challenge to a prenuptial agreement with a presumption that it is enforceable. As one court put it:
“It is axiomatic that a duly executed prenuptial agreement is presumed to be valid and controlling unless and until the party challenging it meets his or her very high burden to set it aside.”
The January 2016 decision made in Gottlieb v. Gottlieb reflects that “very high burden.” In that case, a very wealthy man met his future (and soon-to-be former) wife in September 2003, began living together at the beginning of 2004, and became engaged in September 2005.
Prior to their engagement, a man told his fiance, who was highly educated and employed in finance, that he would not marry her unless there was a prenuptial agreement. The parties began to discuss terms, and in October 2005, while negotiations were ongoing, the fiance learned that she was pregnant.
The parties discussed the terms of the prenuptial agreement many times during the fiance’s pregnancy, but no agreement was reached. The man, however, told his fiance that, on the advice of his attorney, he would not finalize the prenuptial agreement, or marry her, until after the child was born. In May 2006, his fiance gave birth to a daughter, and the negotiations temporarily stopped.
In the fall of 2006, negotiations resumed. At all times during the negotiations, his fiance was represented by a prominent and experienced divorce lawyer.
In April 2007, his fiance learned that she was pregnant again. Against her attorney’s advice, his fiance signed the latest version of the agreement. The parties were married in May 2007 and their second daughter was born in November 2007.
The prenuptial agreement stated that each party had the legal counsel of his or her own choosing “who advised him or her fully with respect to his or her rights in and to the property and income of the other…and that each party understood such advice.” Each party acknowledged that the agreement was “fair and reasonable and not unconscionable,” and was entered into “freely and voluntarily and not as a result of fraud, duress, coercion, pressure or undue influence exercised by the other.” The agreement also stated that the parties had been advised that they might acquire other rights granted to divorcing spouses, but that such rights could be limited or forfeited by the terms of the agreement.
The terms of the agreement were certainly much more favorable to the husband, and when the parties divorced, the wife sought to invalidate the agreement, claiming it was unenforceable. The court disagreed.
Unfairness in a Prenup is Essentially Presumed
“It goes without saying that premarital agreements often involve substantial financial disparities between the parties, with the more-monied party seeking to protect his or her assets and business interests,” the court wrote. “If the unequal division of assets or the failure to maintain the marital lifestyle were to be the test used to determine validity, it would inevitably result in the setting aside of many, if not most, prenuptial agreements.”
In a concurring opinion, one of the judges noted that the wife clearly knew what she was getting into after years of negotiating with the husband about the prenup. The husband “indicated to his fiancée that he was not prepared to be generous with her in any way with respect to the emoluments of marital distribution,” and that “marriage to him required [the wife] to accept a hard bargain,” and that he “laid these cards on the table.”
“It is the entire constellation of events in the premarital life of this couple, as reflected in the record, that overwhelmingly demonstrates that the wife could not reasonably have reposed trust in the husband when she executed the agreement,” the concurring opinion said.
This decision is yet another affirmation that it takes a lot more than unfairness or buyer’s remorse to invalidate a New York prenuptial agreement.
A prenuptial agreement, when handled properly, can actually strengthen a committed couple’s relationship. Usually, over time, even the most hesitant spouse will come to see the benefits of a prenup. In a lot of ways, it’s like an insurance policy. No one wants a marriage to end, but should it happen, you will be glad you planned for it in a prenuptial agreement.
If you and your partner are contemplating marriage, are interested in entering into a prenuptial agreement, or have questions about the enforceability of your prenup, consider Clement Law.
Daniel Clement is a knowledgeable, trustworthy prenuptial agreement attorney who practices in New York and New Jersey and is committed to protecting your rights. Contact us or call us at 212-683-9551.