Normalizing Prenuptial Planning

Prenuptial planning is a common consideration for clients who are getting married. There are several circumstances where a prenuptial agreement is particularly useful, such as second (or perhaps third) marriage situations, especially when the couple have children from prior relationships. It is also not unusual for the children of wealthy clients to be strongly encouraged to discuss prenuptial planning with their spouses-to-be before the big day. Increasingly, people are waiting until they are older to get married for the first time and have accumulated significant assets before marrying; these couples particularly want to protect their ability to do what they like with their assets in the event of their death or a divorce.

Unfortunately, there is a common misapprehension that prenuptial planning is only for the wealthy. I have had some younger clients who are reluctant to broach the topic of prenuptial planning with their significant others because they do not want to create the wrong impression or are afraid of the reaction they will get - such as - "I would never want to be with someone who wanted me to sign a prenuptial agreement, because that would show a complete lack of respect and trust in me as a person and their potential partner in life."

There are a number of statements that can be made to counter this type of response. It is probably helpful to think about some of them before broaching the prenuptial planning topic for those who are queasy about the concept.

First, although it would not be fair to say that prenuptial agreements are common or routine, they are far from unusual. Prenuptial, premarital and, in some states, post-nuptial agreements are clearly permitted and enforceable. Because there is no requirement to file or record prenuptial or premarital agreements (and, they are by their nature, highly private documents), there are no available statistics regarding there general usage. In a study reported by the American Academy of Matrimonial Lawyers in 2010, divorce lawyers reported a 73% increase in the use of prenuptial planning in their practices. Interestingly, the study did not survey estate planning attorneys who also commonly recommend prenuptial planning for their clients. In some situations it is the existence of a prenuptial agreement and full disclosure of financial matters that will allow a marriage-shy spouse who has concerns about diving into marriage again to do so with a clear conscience and knowledge that...