Divorce lawyer Mike Boulette explains that “prenup” is not a dirty word. State divorce laws are prenups, or really postnups, and advises that clients be proactive when planning a marriage.
When I meet new people, there is an inevitable conversational arc after the customary exchange of names, pleasantries, what-brings-you-here’s, before you get to the kicker: “What do you do for work?” I used to say I was a family law attorney until I realized only other lawyers know what that means. So I started saying “I’m a divorce lawyer.” And that leads to questions, one of which is always: “Do you tell everyone to get a prenup?”
I answer this at every business lunch, coffee meeting, and happy hour. And, I used to hem and haw over my answer. As a newer lawyer I’d explain the pros and cons of prenups before coming down squarely in the camp of “it depends,” the only answer a lawyer is ever supposed to give. Especially over drinks. The problem wasn’t just that my answer caused eyes to glaze over with boredom, though it did, the problem was that it was wrong. Completely wrong.
I have learned a lot since those early days and my answer has changed. Now, after asking if they are married, and if they say yes, I say “You already have a prenup. They question is, do you know what it says?” Often, this gets me a blank stare while my new friend wonders if I’ve had a few too many. But, I go on to explain. “Every legally married couple has a prenup. Are you happy with what you have or do you want something different?”
Married? Meet Your Prenup.
As much as we hope our marriages will last a lifetime, eventually every marriage ends. And, whether it’s because of death or divorce, every couple has to deal with issues that inevitably follow that end. Acknowledging that every marriage ends, the question becomes, whose rules will you be play by when it does? Option 1: You can write your own rules, usually in the form of a prenup, or if you’re already married, a postnup. Option 2: The rules are written for you, and every other couple in your state courtesy of your state legislature. These are your state’s divorce and intestacy laws.
Because what is a prenup, after all, but a document dictating your rights during and after marriage? State divorce and probate laws were designed to create a default set of rules governing married couples and their responsibilities towards one another upon death or divorce, and to a lesser extent during marriage. Though the laws are different state-to-state, the concept is the same. If you don’t make a plan, your state makes one for you. That’s your prenup.
Do You Know What Your Prenup (i.e., State Divorce Law) Says?
Now, if you like your state’s divorce and probate laws, great. You don’t need to do anything. Of course, while married, you may move to a state with different laws. Or your state laws may change, and even if they don’t, courts may interpret the same laws differently over time. But, let’s step back a second. This assumes that you actually know what your state divorce laws say. I’d bet that unless you or your partner have been divorced before, you only have a vague idea of your rights and obligations shoud your marriage end in divorce. Even if you read your local laws, would you understand them and the myriad ways they could affect you?
So, now, how sure are you really that you know what your prenup says? Well, you are not alone.
You Can Define Your Own Marriage.
Some people find the idea of making their own marriage plan tasteless, which is why we have divorce and intestacy laws in the first place. Not everyone can be a planner. But, planning does have its advantages. Some of my more Type B friends, and romantics, would remind me that some things are better left to just happen–to evolve organically without a lot of forethought. They may be right. But, as a divorce lawyer, I can tell you, marriage is not one of those things.
While we now know that fewer than 50% of marriages end in divorce, the number still isn’t small. And of those couples that divorce, a disproportionately large share cite financial disagreements as one of the principal reasons. So while planning may not be romantic, it provides a concrete and valuable opportunity to discuss and plan how income, assets, debt, and other issues will be handled during your marriage and, if necessary, after.
Ask and Discuss: Do you share common ideas about money? If not, how are you going to address those differences during your marriage? What are your priorities and how will you structure your lives based on those priorities? Even if all you get is the chance to discuss the things that really matter to you (in life and as a couple), that’s no small advantage.
While this may not be the love-laden pillow-talk you fantasized about exchanging with your intended, it is the sort of difficult, value-laden conversation you should be having with the person you plan to marry. Forever. You’re creating a life together, and as with any life decision, planning and a certain degree of foresight is involved.
Finding Fairness, Together.
Beyond certainty, prenups give you and your partner the chance to decide what matters to you, and what should matter in your marriage. Put another way, a prenup is an opportunity for you and your partner to define your own ideas of fairness, a chance to decide, when you have each other’s best interests at heart, the rules you will play by if, for some reason, there comes a time when you don’t.
One of the most common sentiments I hear from divorcing couples is that they “just want things to be fair.” Of course, when divorce is imminent, what seems fair to one partner may seem like anathema to the other. And both spouses’ visions of fairness may fall wide of what the law actually provides.
So, rather than trying to navigate your state laws with all its ever-shifting vagaries, why not build your own plan, a plan designed by you and your spouse based on the relationship you want? Build a plan with your thoughts, hopes, dreams, values, and aspirations at its center.
Forget About Prenups, Create a Marriage Plan.
This is where the traditional vocabulary for prenups starts to breakdown. Because this isn’t about planning for divorce or death. It’s not about self-protection and a what’s-mine-is-mine mentality. It’s about planning for your marriage, and deciding the kind of life you and your spouse want to build together.
As traditionally understood, prenups are the antithesis of what most couples want for their marriage. If we think of marriage as based on trust, cooperation, and mutual self-sacrifice, then prenups–with their emphasis on self-interested protection–are hardly the way many of us would want to start out.
Which is why we’re not really talking about prenups, though that’s what the law may continue to call them. We’re talking about marriage planning: an opportunity for couples to create a vision of what they want their marriage to be, based on their own shared values.
Think of it as bespoke marriage, as opposed to buying off-the-rack. This is a chance to custom tailor a marriage based on what each partner wants from the relationship, as well as what each is prepared to give: emotionally, financially, as a partner, and as a parent. Under what circumstances would a parent stay at home? If one spouse needs to relocate for a better job, do you stay or do you go? Will you prioritize paying down one partner’s student debt or saving for a home together? These are the questions to ask each other.
There is no right or wrong answer, there is just your answer. There is your plan for your life with your partner. And surely almost anything the two of you create will be more fair and, when done at the start of your life together, loving and positive, than what your state law dictates for you and every other married couple, for better or worse.
Photo Credit: Flickr:/EmilianoHorcada
Mike Boulette (@boulettemichael) is a divorce lawyer, legal blogger (family-in-law.com), adjunct family law professor, and unapologetic millennial living in Minneapolis, Minnesota. When he’s not chasing after his daughter, he regularly writes and lectures on marriage, divorce, and child custody, authoring articles for local and national legal publications. He has been quoted on a variety of family law topics by media sources, including the Star Tribune, Forbes.com, the Fiscal Times, and the Wall Street Journal.
A version of this post previously appeared on the author’s blog family-in-law.com.