Prenuptial agreements, or pre-nups as they are commonly known, get a bad rap in our society. There is this connotation surrounding symmetrical agreements that the only reason a person would get a prenuptial agreement is either too hide something from their spouse to be, protect their wealth in a future divorce or to somehow hurt their spouse to be in some other way. The process is always seen as being born out of greed on behalf of a spouse that has much more in the way of assets and wealth than the other person. While I can say that this never comes up or does not happen the reality of the situation is that people who go through divorces would more times than not have preferred that they be able to have their property, assets and debts divided by a prenuptial agreement rather than having to go through an entire divorce process to do so.
Let's stop right there and think about this for a minute. Suppose that you and your spouse had been married for 10 years, had no children but did grow quite a bit of financial wealth and acquire a significant amount of assets during the course of your marriage. After 10 years your spouse has filed for divorce from you and that process is now underway. Not only do you have a 60 day requirement in Texas for the divorce to take place from the date that you filed the divorce in the 1st place which you will likely also have at least a few months of negotiating over how your community estate should be divided.
These are months of your life and possibly dollars in your pocket that we will not be able to get back. The reality of the situation is that while a divorce does not have to take a year to complete it typically does take somewhere between 4 and six months. These are months that your life is put on hold and you are unable to begin a second chapter in your adult life after your marriage ends.
While a divorce can be something that is necessary in your life it is undoubtedly an unpleasant experience. Nobody who goes through a divorce sits there with a straight face at the end of their case and says to themselves that this was a fun process and that they would do it again if given the opportunity. Even if you knew that your divorce was a long time coming and even if you knew that this was something you needed to do for yourself and your family nobody would repeat a divorce or go through a divorce that could be avoidable. All you need to do is talk to anyone who has gone through a divorce that you know, and I can almost promise you that they will tell you the same thing. It doesn't matter if your divorce worked out in your favor or if your divorce was one that couldn't have gone any worse for you. Nobody feels like a winner at the conclusion of a divorce.
Now, I will not tell you that a prenuptial agreement can help you avoid a divorce. I will also not tell you that a prenuptial agreement will make a divorce more pleasant. What I can tell you is that I think there are many advantages that a prenuptial agreement offers to people in the context of their marriage and actually helping you to avoid divorce in the long term. Before we get into discussing how to bring up the subject of prenuptial agreement with your spouse to be I want to talk about what I think the advantages are for some people who get prenuptial agreements.
The advantages of prenuptial agreements
One of the things that amazed me as a young family law attorney was how untransparent some people are in marriage. When my wife and I got married I never exactly sought out advice from older people to tell me about how their marriages worked. I guess I sort of thought I had it figured out myself about how my wife and I would run our house. One of the things that we did immediately was to combine our incomes, share bank accounts and therefore share financial goals. Doing so accomplished and a great many things but most notably it caused us to communicate with each other on a frequent basis regarding finances. It wasn't as if my wife could up and spend a bunch of money on a credit card that I wasn't aware of. Since we shared all of our accounts and access information online there were no questions about where money was going or how it was being spent.
On the other hand, I have come to learn that many spouses who get married have no intention of ever sharing financial information with their partner. These folks will have either had bad experiences in prior marriages or relationships doing so or just don't think it's necessary. Many people live independent and self-sufficient lives as married persons and believe this works better. I'm not here to place judgment on these folks or to necessarily weigh in on this discussion but I will tell you that almost all people who go through a divorce in my experience do not share financial goals and do not communicate about finances regularly in the home. Whether or not there is a direct relationship between this phenomenon and the right of divorce in our country is something I'll leave to you all to speculate on.
Suffice it to say, divorce can certainly be brought about by financial problems. Without a doubt, financial infidelity and the hiding of assets and debts get almost as readily cause a divorce as relational or sexual infidelity, in my opinion. This means that if you want to do something to help you and your spouse avoid the prospects of a divorce you could always be completely transparent with one another about your finances. This may mean opening up about unpleasant subjects like debt, concerns about your job, and other financial mistakes you have made in your past. The benefit to doing so is that you and your spouse will be operating with the same information in mind and will not have questions or in will not be second guessing one another when it comes to your life together as married persons.
Having a prenuptial agreement drafted means that you will have already had this discussion with your spouse prior to the time you were even married. For instance, if you attended church where pre marriage counseling is required of you and you may know that one of the techniques that counselors and other professionals use when getting young people on the same page when it comes to their marriage is to learn how to budget their income together. Not only does this accomplish and immediate goal of showing two people how to save, budget and spend wisely but it also forces two young people to communicate with one another. Good communication skills are only developed through practice. Nobody comes out of the womb as a great communicator or a great spouse. These skills are developed overtime and talking about money is a great way to develop those skills.
In this way, negotiating a prenuptial agreement can help you to not only develop those communication skills but can also help you too learn about finances with your spouse and get on the same page as him or her before your marriage even begins. I would never say that negotiating and drafting a prenuptial agreement is the same thing as pre marriage counseling but in this context, I think an argument can be made that they are similar in offer similar benefits.
The other key advantage that I see in drafting a prenuptial agreement is that you and your fiancé are able to chart a course for your life irrespective of the state of Texas and its laws regarding community property. People that are going through a divorce quickly learn that the state has fairly unique laws when it comes to dividing up marital property. These laws can stand to benefit certain people and can harm, relatively speaking, other people in similar circumstances. While you and your spouse have some degree of autonomy over your case and how property is divided a judge will almost certainly adhere to the laws of Community property when dividing up your marital assets.
this should make you at least a little bit nervous. While community property laws will guide how a judge divides a property it is also true that the state of Texas allows family court judges a great deal of discretion when dividing up assets and debts between spouses in a trial setting. With that said, nobody truly knows how a judge will decide particular issues when it comes to property division. Not being able to plan for your post-divorce life until the time period after your trial can be a little disconcerting for most people. Fortunately, if your divorce case were to go to a trial you can rest assured that with a prenuptial agreement the judge would not be able to rule upon anything other than issues regarding children.
If you can stick with me on this comparison, drafting a prenuptial agreement is sort of like doing your homework six months in advance. What if I told you when you were in school that you could do your homework from February or March in the months of August and September when you had far less schoolwork to do? You could not get the assignments early on and then when you have more work to do in the spring you would have less to worry about. This is sort of like what drafting a prenuptial agreement is. You can hammer out the issues of dividing up community property and defining what separate property is before your marriage even begins rather than trying to do so with a spouse that you are upset with during the course of a divorce. This seems like a no-brainer to me.
Talking to your fiancé about a prenuptial agreement
That brings us to the topic for today's blog post. Bringing up the subject of a prenuptial agreement with your fiancé does not have to be an intimidating process. I think it is wise to consider a free nuptial agreement especially if you and your fiancé have different levels of education, income earning potential, and separate property. Where I would start this discussion would be to talk to your fiancé about how the prenuptial agreement may benefit him or her and leave your perspective out of it for a moment. Rather than focus on what you need to do you should focus on the way of getting the prenuptial agreement drafted and completed.
Talking about your particular “why” in the context of a prenuptial agreement is a smart play in my opinion because from there you can use that discussion is a jumping off point to go through your overall financial goals for your spouse in the marriage. If you can be transparent with your fiancé about what your finances look like it is more likely that he or she will do the same with you. From there, an honest discussion can ensue about how you both can protect one another from a painful, long, possibly expensive and detrimental divorce by agreeing to prenuptial agreement before you're even married.
Questions about the material contained in today's blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material covered in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultation six days a week in person, over the phone and via video. These consultations are a great way for you to learn more about Texas family law and the services that our law office provides to our clients. Our attorneys work in the family courts of Southeast Texas and take a great deal of pride in representing our community.