Part I

As we begin to consider a life out of quarantine and start (re)planning special life events including weddings, it seems like a good time to raise the issue of prenups. I am not referring to the Beth Din of America’s Halachic Prenup, which should be signed by every Jewish couple before they wed. Typically, the halachic prenup is solely designed to solve the problem of agunot, where one person refuses to cooperate with the giving of the Get, the Jewish divorce.

The focus on this article is on civil prenups, which can be a crucial tool to avoid future conflicts that may arise.

What Is a Prenup?

A prenup (prenuptial agreement) is a contract between two individuals signed prior to their marriage that determines certain rights and obligations to be put in place typically in the event of a divorce or death. Prenups can also address other personal or lifestyle agreements that a couple might want to commit to prior to their marriage.

When a couple marries, they enter a legal relationship which creates rights and responsibilities imposed by the law. Legal guidelines help ensure that upon death or divorce, each party (or surviving party) will be fairly treated in light of the nature of this relationship. In contrast, when a couple signs a prenup, they can create their own law between themselves that may supersede the standard legal guidelines. For example, upon death, without a prenup, the law will ensure that a spouse receives a minimum amount of the deceased’s spouse’s estate, known as the “elective share.” With a prenup, this legal mandate can be waived. Upon divorce, as another example, the law ensures that there is an equitable distribution of the marital assets and debts and seeks to fairly deal with significant income differential (what is called “alimony” in New Jersey). Upon a signing of a prenup, however, a couple can opt out of these standard laws.

The Risks of a Prenup

The art of assessing the benefit of a prenup is the art of balancing the tension between the romantic and the practical. Many individuals shy away from prenups, feeling that it would be inappropriate to raise the idea with a person with whom they hope to spend the rest of their life. Suggesting a prenup can be interpreted to suggest a lack of trust to the person you are about to wed. This is a legitimate and understandable concern, and often entirely warranted. Imposing prenups, particularly on adult children, can imbue toxicity in the in-law relationship that may haunt a marriage until death (or divorce).

Furthermore, there might not be any reason why a couple should look to deviate from the legal standards that would otherwise apply. Indeed, prenups are not necessary for all couples. If a couple is not interested in coming up with a future arrangement that deviates from the legal guidelines, then a prenup might just be unnecessary.

In light of these potential risks, why would anyone benefit from raising the issue of a prenup with their fiancé?

The Benefits of a Prenup

Protecting Children from a Prior Relationship

There are some circumstances in which a prenup can offer unique protections that the law does not provide. Most common is for second marriages, especially when there are children from prior relationships. In such circumstances, each party getting married with prior children will look to ensure that their own children will remain the beneficiaries of his and her estate, notwithstanding a new spouse. Because the new couple readily appreciates the value of protecting the children to ensure that they will benefit from the assets accumulated before this new marriage, a couple marrying for the second time may readily agree to opt out of the law that could otherwise prioritize the new spouse over the prior children.

Protecting a Family Business or Heirloom

Another common situation calling for the use of a prenup is to provide protection when there is a family business. For example, where there is a child working in a family business, the family stakeholders might seek the protection of a prenup to ensure that the family business would never become a marital asset subject to equitable distribution.

Protection from Debts of New Spouse

Along with accumulated assets, a court will divide marital debt and other liabilities in a divorce. If a spouse comes to the marriage with an extensive amount of credit card, other debt or potential bankruptcy, a prenup could establish that such debt is the spouse’s separate debt and minimize the risk of having to assume responsibility for that liability in a future divorce.

Protection from a Volatile and Litigated Divorce

In addition to a prenup’s specific terms, they can also provide protection from the chaos and conflict of future lawsuits. A good prenup can help minimize the risk for any future litigation by resolving future legal issues in the calmness before the marriage, not during the tumultuous and potentially volatile period of a divorce. This will ultimately save much time, money and heartache in case the marriage does not work out.

Transparent and Cooperative Communication and Problem Solving

Last but not least, one of the most beneficial aspects of a prenuptial process is providing the couple a safe venue to have this important conversation. Often, many couples happy with their relationship are also happy not to stir up any difficult conversation, especially about money, which is a common source of marital discord. By having the conversation prior to the marriage (through working out the terms of the prenup) a couple can clarify their expectations of their new relationship with eyes wide open and better informed with the guidance of a professional to enable them to start their life together on the right foot.

For my next column I plan on addressing two different ways in which couples can develop their prenuptial agreement as well as what is required for a prenuptial to be considered legally valid by the courts.

If you are getting married and would like to find out whether you should consider a prenuptial agreement, please feel free to reach out to our experienced attorneys to guide you on this important and nuanced decision.

Adam Berner specializes in mediation and collaborative family law, is the owner of the Berner Law & Mediation Group, with offices in Manhattan and Hackensack. As a pioneer in the family dispute resolution field for the past 25 years he has served as President of the Family & Divorce Mediation Council of NY and Founding President of the NJ Collaborative Law Group. In addition to his private practice, Adam is a mediation trainer and adjunct professor at YU’s Cardozo School of Law where he teaches mediation and collaborative law. Additional information can be found at www.MediationOffices.com