The Dreaded Prenup

Premarital agreements have a bad rap. Often, they’re construed as insults to romance–cold, calculated bets against a relationship’s survival. Countless films and T.V. shows uphold this reputation, to name a few: The Good Wife (2009-2016), How I Met Your Mother (2005-2014), The Wolf of Wall Street (2013), Entourage (2004-2011), Sex and the City (1998-2004), Intolerable Cruelty (2003), Seinfeld (1989-1999), and Cheers (1982-1993). Portrayed as the murderers of true love, these agreements inevitably separate rather than unite (and often to comic effect).

But are they really that bad?

In fact, premarital agreements can save a lot of future hurt. According to California Family Code §1610-1617, they can stipulate:

  • the rights & obligations of all property (for each party or both parties–this includes responsibility for premarital debt as well);
  • the division of property upon divorce, death, or any other event;
  • the making of a will, trust, or other arrangement to carry out the provisions of the agreement;
  • the rights & obligations of the death benefit from a life insurance policy;
  • the choice of law governing the construction of the agreement;
  • and any other matter (including personal rights & obligations, so long as it is not illegal or unconscionable–e.g. spousal support may be allocated, but matters such as child support, child custody/visitation, frequency of sexual relations, or penalties for adultery may not).

Premarital agreements must be agreed upon by both parties. There must be full disclosure, no coercion, and knowledge of exactly what is being agreed upon.

Essentially, a premarital agreement sets up a financial safety net if things go badly. They save time, money, and sanity in a dizzying situation. Indeed, some couples—young, asset-less duos seeking to build a life together—may not be significantly impacted initially. But the power of a pre-marital agreement transcends the present to protect all future assets. It ensures the protection of property should someone die or divorce. The emotional stress of establishing a premarital agreement is not up for debate; yet in comparison to the toll that years of messy dissolution can take (especially if there are children involved), any awkwardness is negligible.

Surely, premarital agreements regard romance skeptically, however, as author Alain de Botton argues, “Romanticism has been unhelpful to us.” It’s misleading fantasy. “It has made a lot of what we go through in marriage seem exceptional and appalling. We end up lonely and convinced that our union, with its imperfections, is not ‘normal.’” Rather than give credence to unrealistic ideals about perfect pairing, Botton suggests that we should treat our imperfections as apart of life. The ideal soul mate, perfectly suited to our every taste, does not exist; but the person who kindly recognizes and values those differences does. We should “learn to accommodate ourselves to ‘wrongness,’ striving always to adopt a more forgiving, humorous and kindly perspective on its multiple examples in ourselves and in our partners.” If we do, marital mishaps will lose the power to emotionally obliterate us. In this light, premarital agreements positively pierce any illusions that may explode further down the road.

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