Five Myths About Premarital Agreements
By Diana Mercer
Between news coverage, soap operas, and family drama, we all have some preconceived notions about premarital agreements (also know as prenuptial agreements). Here are a few of the most common myths, debunked:
Myth 1: Prenuptial agreements are only for wealthy people. My fiancée and I are not rich, and so we don’t need an agreement.
You may not be rich, but you definitely want to have a successful marriage. Having those honest discussions regarding how the two of you will approach finances will ensure that there won’t be any surprises once you are married. You never want to actually need to enforce the premarital agreement, right? Talking about financial issues in advance will help ensure that you handle your finances with minimal conflict during your marriage as well as in case of divorce.
Example: You may become rich in the future. Your education or ideas and talents may one day become more valuable than they are today. You need to think about how you’d want to handle the sale of a book, screenplay, or song; you may also need to think about how you’d handle the division of a business in the event of a divorce.
Example: Second and third marriages can often bring conflict between children from prior relationships and new spouses. Clear discussions about finances in a divorce or premature death situation help everyone avoid conflict later.
Myth 2: Prenuptial agreements are designed to simply protect the wealthier spouse and strip the other spouse of all of his or her rights.
Fact: Prenuptial and premarital agreements should be designed to protect both spouses. Premarital agreements that are unfair and completely one-sided are probably not enforceable in court. By definition, the agreement must be fair. The basic requirements for premarital agreements to be enforceable are: signing the agreement must be voluntary; it can’t be unfair when it’s signed; each party needs to make a full disclosure of your assets and debts.1
Premarital agreements can be designed so that everyone’s needs are met.
Example: With a premarital agreement, you will know in advance how your assets and debts would be handled in the event you do not stay married. You’re negotiating the property settlement while you’re both in love with each other. You would not be at the mercy of your spouse’s generosity or lack of generosity at the time of a divorce.
Example: If you end up needing your agreement to be enforced by the court, you’ll be glad that you made it reasonable from the beginning (and therefore enforceable). For example, by providing a reasonable support structure for your spouse in the premarital agreement, in the event of a divorce, this agreement defines the support’s limits, terms, amount, and duration. If you left it up to a court, you would have no control over any of the terms.
Myth 3: Premarital agreements aren’t romantic.
Fact: Jessica Simpson didn’t think they were romantic, either. And there’s nothing romantic about fighting about money once you’re married because you never discussed how you’d handle your finances, either. Clearly, premarital agreements are touchy subjects, but consider this quote from the Nolo Press book Prenuptial Agreements: How to Write a Fair and Lasting Contract (Nolo Press 2004):
While a prenuptial agreement may not seem like a very romantic project, working together to consider and choose the terms of a prenup can actually strengthen your relationship. After all, marriage is a partnership in every sense of the word. Learning how to deal respectfully and constructively with each other about finances is a benefit in itself. So even if you conclude that you don’t need a prenup, using this book can help you converse with each other about the important—and sometimes challenging—financial matters that are sure to arise in the course of your marriage.
When you marry, you make what you expect and hope will be a lifetime commitment to be there for each other in every way. Your prenup should support and reflect the spirit of partnership with which you approach your wedding vows.
Myth 4: Premarital agreements must deal with every issue that might come up in a divorce.
Fact: You can include as many issues or as few issues as you wish. Because premarital agreements are private contracts, you can make them as detailed as you want.
Example: If the only thing you want for your premarital agreement to accomplish is to protect your premarital property, you can limit your premarital agreement to that issue alone.
If the only thing you want for your premarital agreement to accomplish is to outline what would happen in the event of your death, in addition to a will or a trust, you can limit your premarital agreement to that issue alone.
If you want your premarital agreement to cover almost every issue that might come up in a divorce except one or two issues (like spousal support, or contributions to a pension during the marriage, for example), then you can have the agreement cover everything except the issues you want to exclude.
If you want your premarital agreement to cover every issue, you can do that, too.
Myth 5: If we don’t get married, my live-in mate won’t have any claims to my income or property.
Fact: You could risk your income or assets by living together without marrying.
Palimony is a spousal support substitute for alimony or spousal support for people who are not married. Palimony claims are difficult to prove, but that doesn’t stop some people from trying.
Also, if you have an oral or written discussion about how you will own property, share income, assets, debts, and so forth, it’s sometimes possible to make a claim that contract law applies (as opposed to family law), and that property should be divided even if it’s only in one person’s name, or only one person paid the bills. There are also real estate partition laws that can dictate how property is divided, and in some cases you can even force an involuntary sale at auction.
If you are going to live together without getting married, you’ll want a cohabitation agreement. It’s better to decide who contributes to and owns property before you buy things rather than afterwards.
Example: Remember actor Lee Marvin (The Dirty Dozen and more than 60 other movies)? In the 1970s, his live-in girlfriend of six years, Michelle Triola, brought an action against him alleging that she and Lee Marvin entered into an oral agreement that during the time they lived together they would combine their efforts and earnings and share equally the property accumulated through their individual or combined efforts, and that Michelle would be his companion, housemaker, housekeeper, and cook, give up her career as an entertainer and singer, and that Lee Marvin agreed he would provide for all her financial support for the rest of her life.2
After a couple of appeals, the court agreed with Michelle Triola. Lee Marvin had to pay her $104,000, which was quite a bit of money back in the 1970s. Worse still, you can imagine what he probably paid in attorneys’ fees to defend these claims. But that’s only half the story: Michelle Triola Marvin also had an attorney who needed to be paid, too. Taken in this perspective, a premarital agreement or cohabitation agreement is a cost-effective way to handle this type of situation.
Conclusion: The truth is that a carefully crafted premarital or prenuptial agreement can cement your relationship, prompt you to have the hard discussions that engaged couples need to have, and ensure that your finances are handled the way you each intend in the event you were to divorce or pass away prematurely.
Diana Mercer, attorney-mediator, is the founder of Peace Talks Mediation Services in Los Angeles (www.peace-talks.com) and the co-author of Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Fireside 2001).
1. Cal. Fam. Code § 1615. Most states have similar laws dictating what must be done in order to make a prenuptial agreement valid.
2. Marvin v. Marvin, 18 Cal. 3d 660 and 122 Cal. App. 3d 871; 176 Cal. Rptr. 555; 1981 Cal. App. LEXIS 2132.
© Copyright 2011, American Bar Association.