Most couples get together based on attraction, discuss one or two main expectations or goals, fall in love and decide to get married. They then focus on wedding plans, thinking that if they can negotiate a large event between two families and come out unscathed by the wedding date that they will succeed in their marriage. So why do so many divorces occur?
Many of my divorce clients have the same issues with their spouses, and many of these issues may not have come to a head later in the marriage if the couple had a realistic discussion prior to the wedding. In many cases, a pre-nuptial agreement would have made things easier. Pre-nuptial agreements are not to be taken lightly; I will not even agree to draft one unless the couple is at least eight weeks away from the wedding date – in other words, before the invitations have gone out. An agreement signed shortly before the wedding day will very likely not hold up in court, as the court may well find that one of the parties signed the agreement under duress. There are several issues that you need to discuss with a prospective marriage partner prior to tying the knot.
First and foremost, money is the number one thing to discuss. Not only does money affect the couple after the wedding, some money decisions made unilaterally by one partner will affect both partners. The bride or groom’s financial health prior to the wedding will have a long lasting effect on the marriage. Talk to your intended about your relationship with money. Discussions about spending and saving habits are important as well as frank discussions about debt. Whether either of you has student loans or wants to pursue a new career will make a difference on your ability to reach mutual goals and how long it will take.
Next, talk about property. Some of the young people requesting prenuptial agreements lately do not have much in the way of assets or debts. What they do have is an “app” they are developing or a screenplay they are working on. The odds of these intellectual properties panning out are not fabulous; however, they do have the potential of being worth a lot of money one day. This is the type of property a young person wants to protect in case of divorce.
Sometimes younger people own a part of a family business or real estate. Sometimes it is their parents who suggest that they speak to an attorney about a prenuptial, because the parent recognizes the exposure.
When older clients call, they usually have slightly different concerns. Often one party is moving into a home of the other and wants to be sure that upon the death of the spouse, they will not be out on the street. We can provide that they have a right to live in the marital home for a period of time so that they can have time to mourn and then make decisions about where to move without worrying about being evicted by the executor of the estate.
Next, talk about family expectations. How do you plan to raise your children? Do you even want them? A prospective parent who wants their child to attend a parochial school should make that fact known to their intended, as it has a huge financial impact on the family budget. Likewise, whether or not one parent should stay home while the children are young and what the trade off is for that parent foregoing their career should be discussed. What would the two of you do if you had a disabled child? Certain ethnicities are more prone to inherited diseases and conditions. Many couples today undergo genetic testing to determine their likelihood of passing on a genetic condition. For older couples, perhaps it is not a first marriage of one of the parties, and they want to ensure that their estate will be left to the child or children of the first marriage.
Finally, not everything in life can be planned for, but much can at least be discussed so that you and your new spouse know each other’s wishes in case of disaster. New York State, for instance, has a plan for your estate in the event of your death if you die without a will. If you are planning to be married, that plan includes your spouse, and if there are children involved, it involves them as well. You and your fiancée should discuss how you want to handle things in case of an emergency, or the ultimate tragedy, death. This includes discussing things such as life or disability insurance, long term health care insurance, wills, living wills, health care proxys and powers of attorney. It also includes discussing who will care for your children and their money if tragedy befalls you. A prenuptial agreement is a hybrid of a divorce and an estate planning document. One should know the ins and outs of matrimonial and family law as well as estate planning law in order to draft it properly.
With all these issues to discuss, you may be thinking getting married isn’t so romantic after all. You can’t plan for every contingency, and discussing all your options prior to getting married really is the best method – even if it eventually leads you to decide that your fiancée is really not who you want to spend your life with. However, if after all the talk you feel that this is indeed the person you want to spend the rest of your life with, take that walk down the aisle confidently.
Deborah E. Kaminetzky, Esq.
Kaminetzky Law & Mediation, P.C.
132 Spruce Street
Cedarhurst, New York 11516