TIMING IS EVERYTHING — OR IS IT?

This is part two of my two-part series on Prenuptial Agreement. Last month I posted about why a prenuptial agreement can be a good idea, and for whom. This post contains a few tips on how to raise the subject of a prenup with your soon-to-be spouse.

The early bird gets the worm. Recently Brittany Wong wrote an article for the Huffington Post in which she urges having the prenup conversation as early as possible — even before you’re engaged — because, she says, it’s delicate and uncomfortable.

A weird, heavy conversation. There’s no way around this, Wong continues. What usually works best, she writes, is the truth. For example: “My family and I have always discussed and agreed that if I or my brother every got married, we would sign a prenup,” or “My best friend went through a horrible divorce and all he can remember from it is his lawyer saying, ‘If only you had signed a prenuptial agreement.’”

Prepare for the conversation. James Sexton, in a post you can read here, suggests it’s all about timing and that you should set the scene. Plan an occasion, he says, when you and your spouse-to-be are in a positive frame of mind and have the time and energy for an in-depth discussion.

Be straightforward. You want to be direct without being insensitive. Sexton counsels raising the idea of a prenup in a way that demonstrates you’re being clear-headed and sensible. That said, you probably don’t introduce the topic by saying, “I want a prenup.”

Instead, reassure your partner that your intention is to protect your respective financial interests, not just your own.

Be transparent. Often, Sexton writes, our thinking on the subject of a prenup is shaped by the experiences of our parents, siblings or friends. Share this context, he counsels, with your partner so s/he understands fully where you’re coming from. An example of this is given by Geoff Williams in an article cited in our previous post: one partner came from a family where her forebears had worked hard to invest in real estate, and her father was very clear with both her and her sister that he did not want these family homes to leave their family.

Be realistic. ALL marriages end, be it by death or divorce. A realistic prenup discussion acknowledges that, just as most people don’t want their estates being disposed of under state law in the absence of a will, it’s smart for couples to make post-marriage decisions together rather than ceding those outcomes to state law by default. The two of you know more about your situation than the legislature, no matter how benevolent the elected officials. Also, as we pointed out in our previous post, 45-48% of marriages end in divorce. That’s reality, and willfully assuming you won’t be part of that statistic is denial. Again, Wong comes up with an example, quoting our colleague Katherine Miller from Westchester County. Instead of saying, “I can’t marry you until we have a prenup,” try reframing it this way: “At the end of our marriage, whether it ends in death, as we anticipate, or divorce, what would be most important to you and how would you like to be treated?” Then, she continues, ask your partner if s/he would be open to hearing what would be most important to you in each case.

Emphasize how much headache you’ll be saving yourselves later. Wong’s point ties in to the divorce rate statistics stated above. You don’t having to be a betting man or woman to see the odds are about even, so this premise is far from extreme. Emphasize, Wong says, that “a prenup will simplify a divorce and make it quicker, less expensive and less emotionally taxing,” and “will benefit both you and your fiance(e) and any future children.”

An opportunity to discuss expectations. You and your partner may, Sexton says, be surprised at the extent to which you share similar concerns. What will your respective lives look like post-marriage? The “monied spouse” may fear being taken advantage of; the non-monied spouse may fear being left without means. Understanding each other’s perspective supports problem solving and decreases uncertainty.

Listen. Listening is perhaps the greatest gift one human being can give another. We have two ears and only one mouth for a reason!

Don’t get angry. Sexton warns that you may not get the response you want. Surprise, surprise. It goes without saying that we cannot predict, let alone guarantee, how someone else will respond to us or topics we raise. As stated above, being realistic is key.

Suggest that you co-create the agreement. Both partners, Wong says, should be active in drafting the prenup. I agree with this, and the couple has a number of options to achieve this co-created agreement. A couple can work with a mediator, or the couple can each hire a Collaboratively trained attorney to all work together. In the collaborative setting, we at times will also bring in an estate planning professional or such other professionals as we all agree are needed to make the best agreement possible. The other alternative is also that one half of the couple has an attorney prepare the agreement and the other person has the opportunity to have the agreement reviewed by an attorney of their choosing.

Be prepared to try again. If you truly believe you’re a good candidate for a prenup — or better yet, if you believe you both are — don’t give up if the subject doesn’t land well on the first attempt. Instead, give your partner time and space to evaluate your points.

Have faith and be honest. Sexton states this simple truth: if you’re marrying this person, the two of you need to be able to have a difficult conversation. Not only may you discover similarities in your respective concerns, but you may find that you can be scared or upset and still be very much in love. Wong writes to like effect: “This is, after all, a person you love and want to marry.” Keeping that in mind, she says your “words and deeds will result in you coming up with an agreement that works for both of you.”

Entering into a Prenuptial Agreement can be the best financial decision a couple can make together.

At the end of the day, if a soon-to-be spouse will not agree to a Prenuptial Agreement, is there still something that can be done by one or both soon-to-be spouses to protect assets, protect children, address their own estate planning and financial planning concerns and needs? Yes, there is a certain amount of planning that can be done without having a Prenuptial Agreement. You can make an appointment with me or one of the other attorneys at Lazar and Schwartz for a strategic planning meeting. We can discuss the law in the case of divorce or death and options on addressing your concerns and financial planning on your own during the marriage even without a Prenuptial Agreement.