Considerations for A Pre-Nup (called Pre-Marital Agreement in Texas)
People don’t usually think about using the Collaborative Law Process for crafting their Pre-Marital Agreement, but I think it’s much better than the traditional way of negotiating these agreements. The traditional way for a Pre-Marital Agreement is for one side to go to their attorney and ask their attorney to draft one for them to give to the other fiancé. Historically, because this is a touchy subject, the situation was made worse because it was often a young fiancé (coming from a wealthy family) who put off having that discussion with their betrothed until the last minute.
It’s easy to understand why this discussion would be put off – Pre-Marital Agreements can have lots of provisions in them that, if not discussed together and with a full explanation of what the options and consequences of them are, could be offensive or at least off-putting to the other fiancé. The wedding would be planned, with the date just around the corner, and then the Pre-Marital Agreement would be sprung upon the unsuspecting fiancé.
You can imagine the anger, tears, and temper fits that would be thrown – not a very good way to start a marriage, and actually, it often ends in the marriage being called off or the Pre-Marital Agreement getting signed by the lesser wealthy spouse because he or she felt under the pressure of going forward with the wedding. These folks end up in my office years later with resentment and festering hostility because, in my opinion, of how this whole thing was handled.
Well, for young or not so young couples, we now have a much better way to handle the question of a Pre-Marital Agreement – the Collaborative Process. In the Collaborative Process, the couple will each have their own attorney to advise them privately and during the joint negotiations. The couple will talk about their interests (and often their family’s interests) and develop options to deal with those interests.
This is a review I recently received from a client for whom a Pre-Marital (Pre-Nup) Agreement was prepared:
“A Collaborative Approach to a Pre-Marital Agreement”
5.0 stars ★★★★★
Posted by Connie
January 29, 2018
“I used the collaborative approach for our pre-nuptial agreement and Ms. Milner made the experience easy and uncomplicated. She was very pleasant to work with and extremely knowledgeable. I highly recommend using the collaborative approach because it opens up communication between both parties and their lawyers in an expeditious manner.”
For example, another lawyer and I had one young couple where one side had money and wanted to protect the family wealth from the financial risk of divorce, but the other, less wealthy spouse-to-be didn’t want to be married 20 or 30 years and not even be entitled to what any other spouse would be entitled to after that type of long-term marriage. By having private and joint candid conversations, we were able to explore this young couple’s financial philosophies and goals, and their extended families actually came into the discussion in a positive way to support and advise the young couple. Bringing in the extended family to the discussion is unusual, but because extended family members are shadow influences in the couple’s relationship, this built and understanding across the extended family, too.
There are many questions that are considered and discussed: does the couple want to NEVER have any community property, and if so, what if the wife stays home with the children and at 45, when they leave home she has no career or way to earn a living and has agreed that she will have no right to ask for alimony and have no interest in what has been purchased during the marriage? Or a husband that stays married many years and ends up disabled but had waived his right to anything from his wife’s executive retirement plan and waived any right to alimony?
The possible examples are endless.
In the case of the young couple I described above, we were able to address the questions that both sides (and their families) had to their satisfaction so that the couple could go into the marriage not only with optimism but also with a greater understanding of each of their philosophies and expectations from each other. I believe that this understanding enables couples to have a greater chance of success in their marriage, and goodness knows, the current divorce rate shows that couples need every bit of help they can get to make their marriage a success.
Later in Life and Second or Subsequent Marriages
Another example of the use of the Collaborative Process in the preparation of a Pre-Marital Agreement is when this is a second marriage or a later in life marriage. Often one or both members of the couple may want to set aside assets that they have accumulated in their lives for their children of a previous marriage or relationship. There are so many considerations at the later stages of life, such as if one spouse dies, does the other get to remain in their family residence even if the property goes to the deceased’s children upon the death of the second spouse? And in the Texas Estates Code, the surviving spouse has the right to ask for a Family Allowance, which is the surviving spouse’s expenses for a year following the death of the deceased spouse.
This can be planned for by the parties agreeing in the Pre-Marital agreement that the Family Allowance will be waived, and as a way to offset that waiver, they can agree that the deceased spouse will leave a specific asset or life insurance policy to the surviving spouse to take care of them in lieu of a Family Allowance. There are many options available. It is always surprising when people come in inquiring about whether or not a Pre-Marital agreement would be necessary or helpful, thinking this is no big deal. Sadly, even on a second marriage, if separate property estates are co-mingled, it may cost thousands of dollars in legal fees in a divorce or a probate, when basically the heirs of the deceased spouse are at odds with the surviving spouse of their relative. Those cases are always so sad because, while it does take time and work, all those problems (or many of them, at least) can be anticipated and prevented by a Pre-Marital Agreement.
Finally, Pre-Marital Agreements are underused in same-sex marriages, probably because same-sex marriages are still relatively new to Texas. Just like the first two examples, whether a same-sex couple is young, older, has children or not, if there ever is a divorce or the relationship ends when one of the spouses dies, having a Pre-Marital Agreement can help the couple learn before they marry if they are compatible because the hard questions about things like financial philosophies are explored prior to the marriage, and the couple’s individual and collective goals and interests are better served when the questions are asked and managed at that stage rather than later when emotions are running high on all sides.
If you or someone you know is getting married or thinking of getting married, ask them to talk to a Collaboratively Trained Family Lawyer about this option for them.