Pre-nuptial Agreements

Q. I'm forty-seven years old and engaged. As the wedding nears, we're encountering problems about how we're going to handle our finances. I'd like to see an attorney and draw up a pre-nuptial agreement but "Rose" is digging in her heels and our otherwise fine relationship is beginning to take some serious hits. What is your advice about pre-nuptials?

A. When it comes to prenuptial agreements, there are points to be made both ways: in the end, whether to have them or not must be a matter of what works for any two given people. It is very easy to say that insisting on a prenuptial agreement is like coming in with your bags packed, consciously or unconsciously preparing for an exit, but as you are already aware, it's not so easy if you are the one with the money!

A prenuptial agreement is used to define control of assets and is frequently called for when one partner is about to enter into a relationship with significantly more assets than the other. The primary aim is to protect those assets from being claimed by the partner at a later date. On one hand, putting together a prenuptial agreement is a common sense, adult act that takes into consideration the realities of the modern-day world of intimate relationship. On the other hand, it is a document which is based on lack of trust, and which sets into place a built-in power disparity that will impact the relationship in significant ways for years to come.

We haven't seen much in print about the emotional aspects of establishing these agreements, but we know you are not alone in the tension you are experiencing. Unless the partner with fewer assets is numb, completely under the spell of romantic love, and/or overawed by a partner with deep pockets who can afford to provide them with a lifetime of security, signing away specific personal rights to an intimate partner's assets is a highly charged experience.

We think it is fair to say a lot of awareness is to be gained by tackling a prenuptial agreement with eyes open. The process of gaining that awareness that might be painful at the moment of discovery but if partners demonstrate the fortitude to work it through early on, their relationship stands a much better chance of going more smoothly over the long run. Boundaries established early make for less conflict later on. Even though consciously tackling a "pre-nup" up front can be very stressful, after it has been successfully negotiated, feelings of relief are often present all around-particularly if the process was thorough and both parties were honest about their feelings.

Though pre-nups can be helpful for starting couples in their life together, very definite costs are incurred as years go by. In ordinary circumstances a couple grows together with the intent of forming a whole, a unit with two equal individuals operating together. Prenuptial agreements have a tendency to perpetuate imbalances and inequity. And while a pre-nup is in place there is no incentive or need to work on building the trust that it takes to create that whole unit. Let's face it: money is a form of power. As one partner controls more assets, he or she, always has more power and control in the relationship. Over a period of years, the partner with fewer assets begins to feel as if he or she is committing everything, whereas the holder of the agreement is not. When one partner continually has less power and control relative to the other in any area of relationship and when that same partner feels as if he or she is putting more of themselves (ie. heart, soul, and pocketbook) into the relationship than the other, deep resentment is sure to follow.

The partner with more assets usually has difficulty understanding how stressful pre-nup negotiations are for the partner who has less -when you've got the power it is difficult to see any problem! If you are going to work this through successfully, you are going to have to be very understanding and be willing to negotiate. If you are determined to pursue a contractual arrangement, and you ultimately desire a relationship between two equal, fully cooperating partners, we suggest that you will probably need to include some kind of sunset clause in the contract. In other words, after a defined length of time, typically five to seven years, the contract terminates and the partner with fewer assets becomes a full voting citizen in the marriage. Some contracts even provide for annual payments each year the marriage survives up to the point where the sunset clause kicks in (ugh!).

You might be forgiven for not trusting your mate at the beginning of a marriage but if you still need to protect (and perhaps bolster yourself) with contractual protection after seven years we would wonder why you would want to stay married to your partner.