Your Post-Divorce Plan: The Importance of Prenuptial Agreements

Just the idea of signing a prenuptial agreement before marriage makes most client’s skin crawl. Anxiety mounts regarding presenting the idea to a fiancé or soon-to-be fiancé. Disappointment and concern arise for the fiancé who never raised the idea in the first place.

It is true that many married couples look back on the process of negotiating their prenuptial agreement in a negative light. For some couples, negotiating the prenuptial agreement actually breaks up the relationship. In others, the prenuptial agreement is viewed as a stressful, sad or frustrating part of an otherwise happy beginning to their marriage.

Newly engaged couples are therefore left with the question: Is there a “nice way” to go about negotiating and signing a prenuptial agreement? After over 30 years of practice as a family and divorce mediator and collaborative divorce attorney, I can tell you that yes, it is possible.

The Negotiation Process Makes a Difference

I believe the unhappiness with the process of signing a prenuptial agreement initially stems from a fundamental flaw in how prenuptial agreements are negotiated: I wrote previously about the importance of negotiating the terms of a prenuptial agreement together as a couple before anyone “presents a draft” to his or her fiancé, as is typically done (See Amy Carron Day, “Negotiate The Prenuptial Agreement First, and Draft Later”, New York Law Journal, Aug. 18, 2020). While prenuptial negotiations in my practice typically occur in a collaborative process with two collaborative family/divorce attorneys, or in mediation, traditional attorneys can also sit down with both clients to take the time to educate them, ask a lot of questions and then negotiate informally before an agreement is drafted. Meeting to negotiate first creates a common understanding of both party’s needs, which tends to result in a lot fewer surprises, hurt feelings and arguments when the draft agreement is distributed.

Pre-Marital Communication Makes a Difference

The other key to a more positive prenuptial agreement process, and therefore a stronger future marriage, is committing to putting in the time and energy to really communicate feelings on financial issues and to understand the legal and practical issues together before coming to solutions.

Specifically, I suggest that the couple (1) learn the basic tenets of NYS divorce and estate law which would apply if they did not have a prenuptial agreement; (2) discuss what the couple, and each party, like and do not like about NYS law; and...