When you’re a divorce lawyer, there’s always a sort of inevitable conversational arc after meeting new people.
There’s the customary exchange of names, pleasantries, what-brings-you-here’s, before you get to the kicker: “What do you do for work?“
I used to tell people I was a family law attorney, ’til I realized only lawyers have any idea what that means. So I started telling people I’m a divorce lawyer, which leads me back to the aforementioned conversational arc.
“Do you tell everyone to get a prenup?”
Yup, that’s it. The question I answer at every business lunch, coffee meeting, and happy hour.
I used to hem and haw over my answer. As a newer lawyer I’d try to explain the pros and cons of prenups (or antentuptial agreements as we call them in Minnesota) before coming down squarely in the camp of “it depends”–the only answer a lawyer is ever supposed to give. Especially over drinks.
The problem with this answer wasn’t just that it caused eyes to glaze over with boredom (though it did), the problem was that it’s wrong.
And having learned a lot since those early days, my answer has gotten much shorter:
“No, I tell them they already have one.”
My new acquaintance usually looks at me for a moment or two trying to figure out if I’ve already had a few too many.
“Every couple in Minnesota has a prenup,” I explain. “I just ask my clients if they’re happy with what they’ve got, or if they want something different.”
So maybe now it’s time to clarify.
Married? Living in Minnesota? Check out your prenup here, courtesy of the fine men and women of the Minnesota legislature.
Because what is a prenup, after all but a document dictating your rights during and after marriage?
That’s exactly what Minnesota’s divorce and probate laws were designed to do: create a default set of rights governing married couples and their responsibilities towards one another upon death or divorce (and to a lesser extent during marriage). And though the laws are different state-to-state, it’s basically the same everywhere else: if you don’t make a plan, your state makes one for you.
Do you know what your prenup says?
If you like your state’s laws, great. You don’t need to do anything.
Of course, you may move to a state with different laws. Or your own state laws may change (and even if they don’t your courts may interpret the same laws differently over time.)
But let’s step back a second. Because all this assumes that you actually know what your state divorce laws say. I’m willing to bet that unless you or your partner have been divorced before, you have only a very vague idea of what your rights and obligations would be at the end of a marriage. Even if you did take the time to read up on your local laws (say on a really excellent family law blog), I’ll go double or nothing you didn’t actually understand all of those laws and the 10,000 different ways they could affect you.
So how sure are you that you know what your prenup says?
That’s what I thought.
Still, some people find the whole idea of making their own plan (rather than relying on their state’s default) terribly gauche, which is why we have divorce and intestacy laws in the first place. Not everyone can be a planner.
But for those of us who make lists before going grocery shopping or purchase our plane tickets prior to the day of a flight, planning does have its advantages. (This coming from someone who outlined his college courses the second day of freshman orientation.)
What Matters to You?
I get it though. Planning ahead isn’t everyone’s strong suit. My more Type B friends would remind me that some things are better left to just happen–to evolve organically without a lot of forethought.
Marriage is not one of those things.
While we know now that less than 50% of marriages end in divorce, let’s not overreact–the number still isn’t small. And of those couples that divorce, a disproportionately large share cite financial disagreements as one of the principal reasons. So while planning may not be romantic, it provides a very real and very valuable opportunity to discuss with your partner how income, assets, debt, and more will be handled during your marriage (and after). Do you share common ideas about money? If not, how are you going to address those differences during your marriage. If so, what things are really priorities for both of you and how will you structure your lives accordingly?
Even if all you get out of a prenup is the chance to discuss the things that really matter to you (in life and as a couple), that’s no small advantage.
Beyond the benefits of the conversation alone, a prenup also guarantees that the agreements you make when you have each other’s best interests at heart, will be the same rules you play by if, for some reason, there comes a time when you don’t.
Beyond certainty–usually the biggest selling point when you’re talking about planning–prenups give you and your partner the ability to decide what matters to you, and what should matter in your marriage. Put another way, a prenup is an opportunity for you and your partner to define your own ideas of fairness.
One of the most common sentiments I hear from divorcing couples is that they “just want things to be fair.” Of course, when divorce is imminent, what seems fair to one partner may seem like heresy to the other. And both spouses’ visions of fairness may fall wide of what the law actually provides.
So rather than trying to navigate the laws of your home state with all their ever-shifting vagaries, why not build your own plan? A plan designed by you and your spouse based on the relationship you want to build. A plan with your thoughts, hopes, dreams, values and aspirations at its center? Surely almost anything the two of you create will be more “fair” than the historical-accident that is your state’s default divorce and intestacy regimes.
Forget About Prenups, Make a Marriage Plan
And this is where the traditional vocabulary for talking about prenups starts to breakdown. Because this isn’t about planning for divorce or death. It’s about planning for your marriage, and deciding the kind of lives you and your spouse want to build together.
With all the historical baggage that comes with the word “prenup,” I’ve been exploring with some of my friends and professional connections whether we might be better served if we just threw out the term altogether and started talking about “marriage plans” instead.
In that spirit, Family-In-Law is going to be staring a multi-part series called “Making Your Marriage Plan.” Starting here, and with a few more posts on why anyone should bother with a marriage plan, I’ll be posting regularly for the next several months not only on why every couple should have a marriage plan, but the discussions and planning that should go into them.
Don’t worry. I’ll still be doing regular one-off posts as cases arise or new developments happen. But keep checking back for regular marriage-planning updates.
Or, better yet, subscribe to Family-In-Law and get regular updates right in your inbox. Our newsletter is being updated right now, and if I do say so myself, it’s going to rock.