DIscussing Prenuptial Agreements with Your Future Spouse
Engagement and marriage is an exciting time for both parties in a relationship. However, one topic that relates to impending nuptials, the prenuptial agreement, is a topic that is delicate and often tricky to talk about. One never knows how their future spouse will respond. Will he or she agree that one is necessary? Or, will he or she be totally hostile to the idea? One thing is for sure, if you feel that a prenuptial agreement will be in your or your future spouse’s best interest, it is definitely wise to talk about it, early on. However, the big question is: How do you bring it up? Two recent articles addressed this issue: How (and Why) to Bring-up a Pre-Nup and Love and Money: How to Bring up a Prenup.
One question that many individuals think about when considering marriage is: Why do I need a prenuptial agreement? Also, this is likely to be one of the first questions your future spouse will ask when you bring up the topic. Fortunately, this question is relatively easy to answer. The primary purpose of prenuptial agreements (otherwise known as premarital or antenuptial agreements) is to determine the division of separate and marital property upon divorce. Some common reasons to obtain a premarital agreement are to protect premarital assets or property (property that is obtained by one spouse prior to the marriage, to ensure that any children from prior marriages or relationships are properly cared for in the event of one spouse’s death or divorce, to avoid lengthy and expensive property disputes in the event of a divorce, and to limit each spouses liability for the other spouses debt.
Speaking with your future spouse about the possibility of a premarital agreement is something that should be done early on. Ideally, it should be done prior to or shortly after the engagement. Hopefully, this will ensure that both you and your partner will have a clear mind, and will not feel pressured by the prospect of an upcoming wedding date. In fact, one thing that you should never do is spring a proposed premarital agreement on your future spouse at the last minute. The reasons not to do so are abundant:
1. Springing a premarital agreement on your future spouse may cause him or her to baulk at the idea of signing it. This in turn may postpone any weeding plans the two of you have previously made.
2. Waiting until the last minute will not give your future spouse an appropriate amount of time to review the document and make any necessary changes. It is important for both you and your spouse to be independently represented. This means that you and your spouse should each have your own attorney. Being represented by your own attorney will ensure that you both are satisfied with the agreement you are entering.
3. Failing to ensure that your future spouse has adequately reviewed the agreement, totally understands his or her rights, and does not feel pressured into signing the agreement may lead to the agreement being dishonored by a court. See Blige v. Blige, 283 Ga. 65(2008) and Mallen v. Mallen, 280 Ga. 43(2005) (discussing the enforceability of premarital agreements in Georgia).
Although this may not initially come to mind, another issue that deserves consideration is where you should speak to you partner about entering into a premarital agreement. Location is key. You should chose somewhere private, and where both you and your future spouse feels comfortable and at ease. Discussing the topic of premarital agreements is already likely to be a contentious issue; there is no reason why your surroundings should be an added source of stress.
As with any other discussion you would have with your partner, be open, honest, and direct. Discuss any concerns or issues you may have, and invite your partner to do the same. Frame the discussion in such a way to make your partner feel included. Try to assure your partner that entering into a premarital agreement is an endeavor that you two are entering into together, not just something that you are pushing him or her into. Answer all of your future spouse’s questions, and try to put their concerns to rest if at all possible.
Below are some sample discussion starters that may help you start your conversation:
“I believe that marriage is a fifty-fifty proposition, and I'm concerned about giving up my job to become a full-time stay at home spouse. Can we establish a principle of 50-50 sharing at the outset?"
"Let's talk about our future, what we both want, our lifestyles, our present and future finances. I want to make sure all our money issues are addressed and resolved in an agreement. Then we won't have them hanging over us when we get married."
"One thing I have to consider before I get married is my parents' business. I need to be confident that the business will remain in the family in the event the unthinkable occurs."
The Family Law attorneys at Meriwether & Tharp, LLC realize that discussing entering into a premarital agreement with your future spouse may not be the most pleasant task. However, once you and your partner have agreed to form one, we here at Meriwether & Tharp will be more than glad to help you and your partner draft the agreement that best serves your needs.
By A. Latrese Martin, Associate Attorney, Meriwether & Tharp, LLC