What are some examples of when you should consider a prenup and how is it a positive and not a negative in a serious relationship which is headed for marriage?
A prenuptial agreement, more commonly referred to as a “prenup” often has a negative bias attached to its name and the underlying concept. Why would you want to negotiate a contract which spells out what happens if something goes wrong with the health of one of the parties or if the relationship winds up in divorce?
Let’s begin with the California concept of “separate” property. Any debt (such as student loans) or asset which belongs to either party before the date of marriage is considered to be the separate property of the individual. The marriage establishes “community property” as any asset or debt acquired by either or both (regardless of who is or isn’t on title or on an account) is now basically jointly held until “death do you part” or the date a subsequent divorce is finalized.
The decision of whether you should consider a prenup prior to marriage or pitch in everything as “ours” is usually based upon situations when one of the future spouses has substantially more debt or assets than the other.
If one of the parties has worked to build a successful business or body of creative work (art, music, intellectual property) prior to the marriage they should retain ownership of that work independent of the marriage. If one of the partners has substantial wealth or there is a substantial disparity in income you should consider a prenup. Many couples find working through the issues of a prenup clears the air, strengthens the relationship and helps to develop the tools which will carry them through the challenges they will face during the marriage.
It’s just as easy to argue “Are you marrying me for my money” as it is “isn’t a prenup basically predicting a divorce from the outset?”
If you are experiencing a “tit for tat” argument about a prenup, or if it’s an “all or nothing” argument you may need to reconsider the health of the relationship. Multiple studies have shown one of the best predictors of a long and healthy marriage is the ability to openly and honestly face a situation or issue of disagreement, work together to identify potential alternatives and ultimately work through any challenges to reach agreement upon the path forward.