A Prenup Doesn’t Mean You Will Get Nothing In A Divorce
Does a prenup mean I will get nothing in a divorce?
So this is a fair question. There are certainly prenups that have been drafted that say something to this effect. I like to remind people that prenups are contracts like any other contract. So just like there are good and bad contracts, there are good and bad prenups.
A prenup can be totally fair or completely unfair, depending on what you put into it. This is why I believe that a prenuptial agreement done correctly has to be a collaborative effort. What does that mean? It means that both spouses start talking about what they want the agreement to look like together, months before the wedding. If your fiancé springs a prenup on you the day before your wedding, and you didn’t even know he or she was thinking about one, you can bet it’s not going to be a fair agreement. A fair agreement is going to be one that the couple reaches together, with each spouse having equal input. And not one that is based on the unequal power dynamic of the wealthier spouse.
And equally as important in this case is the attorney that you hire to do this. You see, a prenuptial agreement is very different from other contracts. It’s different from other negotiations. If I’m buying a house, I just want to get the lowest price possible. I’m unlikely to need to work with the seller of the house again in the future, I might not even ever meet that person face to face. It’s an arms-length transaction, the whole thing happens between realtors and lawyers, so I don’t need to worry about the relationship I have with the seller of the house in the future. It doesn’t matter if I make them mad or burn bridges. It’s just a transaction and I can negotiate as hard as I want. If they don’t want to sell for the price I’m willing to pay, then we can both just walk away.
A prenuptial agreement is very different. It’s at the beginning of our marriage. After we sign this document, we’re going to go get married and profess our love for each other in front of everyone we know. And then we’re supposed to go spend the rest of our lives together. And this is why you can’t just hire any old attorney to draft your prenup. Because your average family law attorney spends 99% of her year as a pit bull attorney litigating divorces and then treats your prenup negotiation with the same scorched earth tactics that she does her divorce cases. And that can cause more harm than good for the relationship.
In most contract negotiations, the goal is to get the best possible deal, the best possible price possible. In a prenup negotiation, the ultimate goal isn’t to win — it’s to stay married.
You’ve got to negotiate with that in mind. So when you hire an attorney, ask how they’ve handled these negotiations in the past, how many prenups they’ve done, and what the results were. You want someone to come in with a scalpel, not a sledgehammer, for this delicate and important negotiation.
Coming back to the original question, if you’re presented with a prenup that gives you nothing, don’t sign it. You should never sign a prenup that leaves you penniless at the end of the marriage. You want to be clear about where the dividing lines are between mine, yours, and ours. But there should be some mine in your prenup.
