Whether you call it a "prenuptial," "premarital" or "antenuptial" agreement, it's the same thing: an agreement in which a couple sets out the rules that will govern their property, debts, income and expenses. Lawyers love to talk about prenuptial agreements. They keep talking themselves into believing that, eventually, nearly all couples who marry - or at least who remarry after a divorce - will sign one (and pay them a big fee). That's unlikely.
Prenuptial agreements sometimes make sense. A prenuptial agreement allows both spouses to protect their separate property. Otherwise, if one of them owns an asset now and sells it after marriage, the cash may become marital property.
A prenuptial agreement also allows both spouses to protect themselves from the other's debts - those incurred before the marriage and those incurred after. And it may allow them to determine what level of support one of them will provide to the other if they divorce or if one of them dies.
Prenuptial agreements can also address situations in which one partner leaves a secure and fulfilling job to live with a geographically distant spouse. If the marriage doesn't work out, is it fair to just send the relocating spouse back home with nothing? Many people would say not. A prenuptial agreement is a good way to provide for that.
On the other hand, a prenuptial agreement also allows the spouses to agree that everything they own and everything they owe will automatically become shared from their wedding day forward, or gradually as they stay married over a period of years. The flexibility of the prenuptial agreement is its main selling point.
Most people don't do them. They may be prudent, but premarital agreements just don't feel good. It feels like you're giving up on your marriage before you even get started. You're asking two people who are thoroughly in love and convinced that this is a marriage made to last forever to, in effect, negotiate their divorce settlement before they say "I do." Any way you dress it up, that's a real downer for romance.
In addition, prenuptial agreements are expensive. Most of us can finish a will without a lawyer. Many of us can complete a divorce without a lawyer, or at least only using a lawyer as a coach. But it's usually necessary to use a lawyer to draw up a prenuptial agreement that will hold up. For both these reasons, prenuptial agreements are rare. They may be getting a little more common, but they're still rare.
In most states, you can only enforce a prenuptial agreement if it's fair at the time you're enforcing it (a tough standard), or if the party you're trying to enforce it against had representation when you negotiated and signed the agreement. As a practical matter, then, most people who negotiate and execute prenuptial agreements are both represented by lawyers. It's rare for a couple to complete their negotiations and sign the agreement for less than $1,500 or so in legal fees, and the cost can run much higher.
Unlike an adversarial divorce, where you're distrustful of your spouse and looking for someone who can protect you against an expected onslaught, you and your intended have a good working trust of each other (if you don't, why are you getting married?), so there's no reason you can't shop for your respective lawyers together. That is, look for lawyers who are comfortable with and trusting of each other, and look for lawyers who are comfortable talking with both of you together.
Lawyers are forbidden to talk to a party who is represented by another lawyer outside that lawyer's presence. However, if all four of you sit down together, there's no reason you can't engage in a free and frank discussion about your options and the risks and rewards of each option for each of you. In this kind of discussion, all four of you - both of you, and your lawyers - are free to speak directly with anyone else in the group.
One thing you might ask a lawyer you're thinking of hiring to draft a prenuptial agreement is "how long is your form ?" If it's a 50-plus-page book, reflect on whether you and your sweetheart want to interrupt your sweet nothings to pore over that much prose. If the lawyer says, "I don't have a form. I'll put it together once I know what you're trying to accomplish," you might wonder whether the lawyer has enough experience with prenuptial agreements to help you get through this.
Any good prenuptial agreement will include a detailed description of the significant property that each of you owns and the significant debts that each of you owes. This is often the most exhausting part of preparing a prenuptial agreement, because it requires so much data gathering from both of you. If you and your intended are contemplating a prenuptial agreement, you can save yourself some time and money down the road if you begin gathering that information now so that it's ready when you start negotiating.
The actual form of the prenuptial agreement can be relatively simple (as few as 5 to 6 pages) or incredibly complex (running on for 100 or more pages). But negotiating the agreement need not be complex. You and your intended can sit down in the same room with your respective lawyers and finish the main negotiations in an afternoon, leaving it to the lawyers to draft the language. Then you could meet for another session in which you complete the fine points of the language and actually sign the agreement.
On the other hand, when the spouses lack basic trust and the lawyers take over, negotiations can run for hours upon hours spread out over months, typically culminating in a marathon negotiation and drafting session on the eve of the wedding rehearsal. Don't laugh. It happens.
Expect some tension. In one sense, the negotiation of a prenuptial agreement allows each of you to see the other at their worst, when you're arguing about money. If you have disagreements, that's okay. If you don't disagree, well, if you don't, that may bode well for your future marriage.
Another option: If you and your new spouse-to-be really aren't going to do the prenuptial thing, there are some practical steps both of you can take to control the way your property, debts, income and expenses merge. First, prepare a thorough inventory of everything you own and everything you owe as of your wedding day. You can do this without even sharing it with your spouse.But if the two of you can cooperate, you could each prepare an inventory and then sign a document indicating that you've each shared this information with your spouse.
Second, to the extent that you want property you acquired before your marriage to remain separate, treat it that way. Don't use it for the benefit of the marriage. If you sell or liquidate any of it, make sure you deposit the proceeds in a separate account in your name only and that you don't use the proceeds for the benefit of the marriage.
If you already know that you're going to use some of your separate property for the benefit of the marriage, go ahead and pull out that much cash and deposit it into an account you can both draw out of, leaving the remainder of the separate property in the original account and preserving its separateness.
As your marriage continues, you may be tempted to tap into your separate property account for expenses of the marriage, like a down payment on a house or an investment in a business. Just realize that every time you tap your separate property for a marital purpose, you make it look more like marital property.
Lee Borden is a lawyer and divorce mediator based in Birmingham, Ala., who loves his work. His Web site, divorceinfo.com, includes other articles.