January 28, 2022 • By Dennis Beaver
Anyone who is about to say “I do” has probably heard, “With divorce rates so high, you need to protect yourself with a prenup.”
But do you really need one?
Today’s story began with a call from my client, Reggie, whose son Jake — also our client — came out of bad divorce.
“Our estate-planning attorney drafted a prenup — that he called standard —and wants Michelle to have it reviewed by her own lawyer. I told her to call you for an appointment and it is on my dime. I’ve just emailed it to you.”
Now, I’ve reviewed these agreements for years and given opinions on just how fair they were. But this time was different.
I was being asked to tell a client’s future wife if it would be ok for her to sign their prenuptial agreement, which would be an obvious conflict of interest and I would normally decline. However, when told the name of the lawyer who drafted it, all bets were off as there was a risk she would just sign it to make everyone happy.
In the past, this particular attorney had revealed very poor judgment, seriously violating our rules of professional conduct, harming several of his clients. Additionally, any attorney who claims to have a “standard” prenup is the last one you want to hire, as every premarital agreement should be tailored to the couple’s specific situation and needs.
When it arrived, my fears were realized. I immediately scheduled an appointment for Michelle with a family law attorney whose competence I respect.
Not something to be Taken Lightly
As Plainfield, Massachusetts family law attorney Laurie Israel writes in The Generous Prenup – How to Support the Marriage and avoid the Pitfalls:
“Couples are told that prenups are crucial and occasionally they are. Their accountants, business associates, lawyers, and family members tell them to have one. But you rarely hear or read about just how dangerous for the health of your marriage a prenup can be,” Israel says.
I ran by her the prenup that Michelle was being asked to sign.
“Dennis, this is bad news. It would convince her that she was marrying a selfish person who would use and then could drop her in a moment, with no repercussions.”
That was exactly what I thought.
Now, ask yourself, “If I was given something like this to sign, what would it make me think of the person I was about to marry?”
Under the heading: Sole and Exclusive Agreement of all Rights – Fairness, the agreement states: “Both parties accept the terms of this agreement as the fair, and exclusive settlement of all rights and claims, now or in the future. This Agreement and its terms are not one sided, harsh, oppressive, surprising or unfair for either party.”
Want to bet?
Jake manages and will soon take over his father’s oilfield service business. With no prenup, through his efforts, as the business grows and becomes more valuable, that increase in value would be considered belonging half to the wife if they divorced.
But the prenup says, “Regardless of the time husband devotes to the business, which would be considered as marital or community property, or efforts by wife to make it more profitable, wife has no claim to its increase in value. Also, no claim on contributions to husband’s retirement account from community funds. Wife waives any claim for spousal support in the event of divorce.”
Remember that part about, “This Agreement and its terms are not one sided, harsh, oppressive, surprising or unfair for either party.” When I read that again, my blood boiled.
“It’s obviously not true,” Israel points out, but if Michelle signs it, the prenup will most likely be upheld when Jake drops her when she is 50 years old.”
Like Smashing Your Marriage With a Wrecking Ball
“Prenups tend to paint the future spouse as selfish, uncaring and overly-concerned about money. Inherently unfair, they undervalue the time that the non-employed spouse has dedicated to keeping house, raising the kids and so on. A lifetime of bad memories is created as the person you loved now wants to take things away from you!
“The basic premise of a good marriage involves connectedness and sharing at every level, but most prenups change that. One of the ways you show your love is to be generous to your spouse with money.
“Finances and creating a good livelihood and security is very important to a marriage. Take that away and your marriage will limp along. As parents of the more moneyed spouse often insist on having a prenup, this tends to make you less kindly and loving toward them.
“In most instances, there is no better way to destroy a marriage before it’s even started than to have a prenup. It is like smashing it with a wrecking ball.” Concluding our interview, attorney Israel offers this advice:
“If you choose to be married, do it fairly and generously. Trust in the tradition of marriage as a sharing of everything, including finances. Trust in the law to treat both of you fairly should you decide to end your marriage.”
Available on Amazon, The Generous Prenup should be required reading of all those people who are so quick to say, “You’ve got to have a pre-nup!”
Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.