This is a question that plagues me every day– either in my consults for prenuptial agreements or with those about to embark in the divorce process. Explaining the law is easy, but getting couples to agree on what should be part of the marital pie is often not easy at all.
With a prenuptial agreement, couples can redefine upfront what will be considered separate versus marital during their marriage. Some choose to waive a right to make any claims for alimony in the event of divorce, others prefer to set caps on the duration and/or amount. To a detached person acting like a scribe, these may seem like straight-forward issues, but as I sit there discussing these matters with my clients the reality is there are a lot of complicated emotions that need to be flushed out well before each couple says, “I do.”
The fact is there is a wide range of attitudes out there about what people feel entitled to in a marriage. Not everyone agrees that everything accumulated during a marriage through employment efforts and savvy investments should be “ours.” Particularly, those that are over 40 and/or entering a second marriage with assets are much more prone to want to protect their own nest eggs and minimize the risk of having someone else on their payroll. I know it sounds harsh, but it is true for those willing to remarry later in life mainly seek a life companion, which is so amazingly uplifting and yet it begs the question: what are you going to build together?
On the flip side, for those that unfortunately face a divorce without a prenuptial agreement, there are a lot of unknowns that will need to be addressed, and the reason for all the uncertainly is that fundamentally there are severe differences of opinion between estranged spouses as to what is fair and reasonable with respect to either a support award or division of assets. It simply is not easy for two opposing sides to agree on (1) what is “ours” and (2) how should we split it all?
Given everything that is at stake, before couples get too ahead of themselves in planning a future together, they sit down with one other and ask some difficult questions, including: (1) What is going to be yours versus mine? (2) What do we want to build together? and (3) Do we want to put these agreements down on paper? If there is some resistance to this notion simply ask someone to explain the basis for his/her feelings. Also, each should be prepared to articulate his/her concerns and deal-breakers. Understanding each other is the key to resolving conflicts, which are an inevitable part of married life.
Money talks are rarely easy, but if you want to live happily ever after, you have to be on the same page with your partner as to what it is that you are creating together versus “yours” or “mine.”
By Regina A. DeMeo, Esq.