For a Person Who Has Been Requested to Sign a Prenuptial Agreement

For a Person Who Has Been Requested to Sign a Prenuptial Agreement

Be trusting. Think Purposefully.  Act wisely.

You have been presented with a proposed prenuptial (also known as an ante-nuptial) agreement. That means that your partner loves you, but also wants a plan should the marriage fail. Although you may be put off by the request for a pre-nup, and even the notion that the marriage could fail, consider viewing it as a two-fold opportunity.

  • One, you may reduce the cost of potential litigation.
  • Two, you and your partner may discuss in detail a purposeful life within the marriage.  

 

In today’s world, many and maybe most marriages fail. Divorce cases may last months or even years. They may be costly in terms of money and your emotional well-being. Here is why: Missouri law treats marriage as a legal contract, no matter wherever or however it has been solemnized or celebrated. If nothing is in writing beforehand, the Court determines the terms of ending the marriage contract. The courts look to fairness, which means that the Court must consider what each party believes is fair, examine each spouse’s behavior over the course of the marriage, then award property and possibly spousal support based on what the Court believes is fair. That also means the court must value every asset, large or small, and identify the source of income for each person.

The process takes time and money. When former partners disagree, then the Court hears a lot of evidence, after each side undertakes a lot of investigation. The events of your marriage are placed into evidence, with lawyers trying to establish marital misconduct which usually means mutual attacks on the character of both spouses. Family and friends often divide and become partisan and antagonistic.

With the dissolution process being so expensive and time consuming, and emotionally derailing, prenuptial agreements are an important tool for future life partners. A prenuptial agreement can shorten the dissolution process considerably, keeping the disposition of property and debts in the hands of the people who made it, and not the Court’s hands. A shortened divorce process allows each person to understand their positions and move forward. In discussing pre-nups, an opportunity exists for trust to develop as you both understand the consequences of not living in your marriage purposefully. Trust may also develop as each partner understands the needs of the other in the event of a failed marriage, and respects those needs.   

If your partner seeks a prenuptial agreement, be mindful that you also must consider what is fair to you. Your partner loves you, but is not in your position. Communication is key. Make sure your partner and you understand what each expects of the other in the most practical of terms. If you have trouble expressing what you expect, or understanding what your partner expects, seek marriage counseling well in advance of your proposed marriage date. Most marriage counselors encourage partners to discuss their relationship in detail before marriage. The best marriage counselors use the sessions as opportunities to develop communication that is respectful and clear. Discussing a pre-nup in the course of this form of counseling will also help you both decide on mutual goals and expectations, in addition to the discussions of resolving a failed marriage with minimal conflict.  

Here, I must point out the pre-nups do not eliminate conflict or litigation as to child custody issues. An important limitation exists: you may not enter custody orders or any order relating to the financial expense of raising a child born of the marriage. Missouri courts follow the principle that the state must look to the well-being of children. So, should you and your future spouse have children, or already have children, the Court will determine the custodial and financial terms of a dissolution related to them. These terms include:

  • Parental decision-making
  • The frequency, duration and conditions of parent-child contact
  • Monthly child support
  • The payment of certain expenses related to raising a child, including health insurance or tuition.

 

For those who are of child raising years: you may not want children now, but what if you do have a child? One of you may sacrifice a career, education, hobbies, etc., while the other becomes the main source of financial support. If so, for how long? Until the child is in pre-school? Kindergarten? Obtains a drivers’ license? Attends college? Even if you do not have children, discuss the matter thoroughly. How can you plan without knowing what may be expected of you during your marriage? On the other hand, discussing these issues thoroughly can provide a foundation for a long and happy marriage.

Consider your viewpoint on being the partner who supports the other partner’s career. With or without children, your role may be to host events, become involved in church, charity, and school activities, or participate in company functions. For those roles, you may give up on your graduate degree, take a different career path so that you have time and energy for your roles, or not follow an income earning career, including being a full-time “stay at home” spouse. If your marriage ends, and you have been out of the workforce, without a completed degree, or in the workforce but without experience valuable to an employer, you must think about your financial needs. Do not automatically agree to waive, or give up, periodic maintenance (what used to be called alimony), just because your partner agrees to.

What house or apartment could you afford to live in? What will be the expense of an education or training that will prepare you for the workforce? How long will it take for you to gain experience in the workforce to be able to earn an income sufficient to meet your needs? If the children live with you, in what neighborhood must you live for them to attend good schools? At the other end of the spectrum, how much assistance will you need to live in retirement if you did not earn much or anything outside the household during your “working years”? Discuss these issues with your partner.

After you have discussed all of these issues with your partner, then let your lawyer work out the practical terms of a prenuptial agreement with your partner’s lawyer. If your partner seeks to protect assets from division, then your partner may consider diverting funds into an investment account in your name, the funds of which must only be used for your investment, and not for expenses. Does this sound too constraining? Then consider asking for a monthly stipend or allowance for you, your discretionary income and savings, over and above household expenses.

In the event of an exit, if your partner is to keep the home in which you will have been living, try to agree to a temporary maintenance figure sufficient for you to move out without difficulty, keeping in mind the inevitable rise in cost of living over time. If you are giving up an education, then consider maintenance in an amount more than sufficient to cover full time tuition and transition to the workforce. Identify a university you would wish to attend, and affix payment of expenses to its tuition rates and housing close to the university to facilitate enrollment and attendance, in addition to periodic maintenance, or in lieu of it.

Moreover, consider that amount of monthly spousal support you will need, along with an idea of how long you will need it. Should it end in two years? Should it end when the youngest child completes high school? When you reach age 65? Do you have a medical or other circumstance that it should continue for the rest of your life?

Think about your property, too. If you are contributing to the proposed marriage separate investment or retirement accounts, consider making those properties indivisible, even if you or your partner contributes to them during the marriage. If you are in a position that you may receive an inheritance or grant of a trust, consider a provision that allows you to segregate the value of that inheritance and any income earned from it.  A pre-nup may assign a minimum value to such assets, even if spent upon depreciating assets like automobiles or boats, or for expenses, or invested in an asset owned by your spouse.

There’s one other aspect to prenuptial agreements you should keep in mind. Done properly, they are enforceable in Missouri. Missouri only invalidates a properly phrased pre-nup if the terms are unconscionable at the time the parties signed it. So if one  partner recently entered the workforce at the time you signed the agreement, and you agreed to not receive spousal support if divorced, you will not receive spousal maintenance 30 years later when your partner earns $350,000.00 per year, and you did not continue in the workforce. You may be facing a financial calamity if your pre-nup identified all marital property as belonging to your partner. Be wise when signing a pre-nup. Assume its terms, no matter how unfair at the time of the divorce, will be enforced fully.  So be wise when you sign it.

Again, talk things through with your partner. Your partner may not want to listen, but the discussion is a good test of your partner’s regard for your well-being, even if you both believe an exit from marriage will not occur. Indeed, a heart-to-heart discussion about these matters going into a marriage should be part of the foundation of a long and happy marriage. Avoid being put off by the request to consider the possible end of a relationship. Recall, everyone who has gotten a divorce believed at the beginning that they were entering a life-time commitment. And your partner has already considered the possibility that the marriage could end by divorce, or they would not have proposed a prenuptial agreement to you. So be trusting. Think purposefully. Act wisely.    

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