A prenuptial agreement is like “insurance” for your marriage. 
Yet, the statistical chances that you will use your automobile insurance for a serious motor vehicle accident are actually low. On the other hand, the statistics concerning marriage and divorce are sobering: Approximately 50% of first-time marriages end in divorce. Why is it then that we think nothing of paying hundreds of dollars a year for car insurance for an accident that might never happen, but think little about how to direct and protect our assets should our marriage dissolve?
Enter the prenuptial agreement. A prenuptial agreement is like “insurance” for your marriage. Does car insurance prevent, protect or guarantee that you will avoid an automobile accident? No. Accidents (sometimes bad ones) do happen. And, yes, motor vehicle accidents can be painful and costly, and innocent people get hurt. But like automobile insurance, a prenuptial agreement can lessen the pain, reduce damages and hasten the recovery should a legal separation or divorce occur.
How does it work? The two potential spouses make an agreement in writing about as many of the details as they can before marriage to direct how property and debt should be divided if they separate or divorce. The agreement that they reach, the steps required in the agreement, and the procedure by which they create the prenuptial agreement are critical. The reason why is because these two people, in the event they separate or divorce, are basically instructing the judge how to divide property and debt. Thus, a prenuptial agreement rewrites the law and tells the judge what to do. However, only a seasoned lawyer, preferably one who has litigated the enforceability or invalidity of these contracts, should draft the prenuptial agreement and direct the procedure surrounding how it is signed.
So, if a prenuptial agreement can be such a good idea, why don’t more people have one before they marry? Several myths abound.
Myth #1: Even suggesting a prenuptial agreement to a proposed spouse shows we don’t trust each other.
Talking about finances with your proposed spouse before marriage actually shows you trust him/her more. Psychologists/social scientists tell us a recurrent theme in bad relationships is the “failure to communicate.” Prenuptial agreements require a couple to discuss issues in advance, before they are married, and sometimes to engage in robust debate about issues regarding future finances, debt, property and work effort. These discussions, when engaged in a serious, mature and in-depth manner, reveal common ground or highlight substantial differences that might affect the happiness and longevity of the relationship well in advance. Couples are well served to have such discussions long before the marriage license is procured.
Myth #2: Prenuptial agreements actually make it more likely your marriage will end in divorce.
Not true. While a properly drafted prenuptial agreement can make property, debt, maintenance and attorney’s fees resolve quickly and inexpensively, statistically fewer people with prenuptial agreements divorce or separate than those without one. In fact, the work, effort and communication that occurs before the spouses sign a prenuptial agreement serves as a foundation to problem solve after the marriage happens, when disputes occur.
Myth #3: Prenuptial agreements can be expensive; why spend the money if we don’t have to?
A properly prepared prenuptial agreement, its uniqueness and the procedural requirements to sign it may at first blush seem expensive and unnecessary. After all, a marriage license can be had cheaply. Consider this: How much do you spend each year on auto insurance, property taxes or medical insurance? Ever figure whether you get in return from the company what you spend each month? The cost of a prenuptial agreement is one time only, not monthly. By the way, talk to someone who has been through a nasty separation or divorce without one and you can see that the useful “insurance policy” of a prenuptial agreement is a much better deal. In short, a prenuptial agreement costs a fraction of the cost a protracted divorce does.
You might be thinking, “Okay, but I’m already married…can we do anything now to insure the marriage?” Actually, yes. It is called a post-nuptial agreement. Look for a later article to address its requirements. FBN
By Zach Markham
Zach Markham has been a Flagstaff resident since 1977 when he was attending NAU. He is a partner with the law firm of Aspey, Watkins & Diesel, where he practices family law. He is available for free consultations to discuss any family law issue and can be reached at 928-774-1478.
