Why You May Want a Pre-Nup

Pre-nuptial (also “pre-marital”) agreements are what everybody calls  “pre-nups”. 

Pre-nups have a mixed reputation in our society.  Some people see them as smart protection from gold digging prospective spouses.  Others seem them as cold-hearted unromantic acts that stand in stark contrast to what you’re supposed to be feeling before you get married.

But, most people don’t know about another more positive use of a pre-nup:  An antidote to an ugly divorce™. 

You and your future spouse can create a pre-nup in which you agree to try to avoid an ugly divorce if the marriage doesn’t last forever.

You can sign a pre-nup in which you both agree to attempt to resolve any future divorce, custody, child support, alimony, and property division issues through collaborative divorce or mediation before you go to court. 

This kind of pre-nup doesn’t determine the terms your ultimate resolution.  You don't have to figure it all out ahead of time.  It simply determines the first process that you’ll use to figure out the details if things don’t work out.

A pre-nup cannot prevent a court from ordering financial support to a child.  And, in North Carolina, a court always has the right to enter an order for the custody and support of a child if and when the court finds it necessary.

However, North Carolina courts will enforce pre-nups under current law.

There are many potential benefits of a pre-nup that requires a couple to attempt a collaborative divorce or mediation before going to divorce court.  What are they? 

EMOTIONAL BENEFITS:  From an emotional standpoint, you would be committing to each other that even in the unfortunate event that things don’t work out, you do not want to put each other through the ringer in a divorce. 

Some people have are afraid to get married.  Many of those people have a fear of divorce, instead of a fear of marriage.  And that fear is usually based on their understanding of what a bad divorce looks like.  Maybe they have been a party to a bad divorce as either a spouse or child. 

A pre-nup that requires you to first try to handle a subsequent potential divorce with dignity, grace and respect may take a lot of the fear of divorce away.   And, that, in turn, may take some of the fear of marriage away.  And, less fear seems like a very good thing for the health of any marriage. 

FINANCIAL BENEFITS:  Financially, this kind of pre-nup commits you to processes that seek to preserve your financial well being in the divorce process.  Both collaborative divorce and mediation are based on the idea that people don’t want to spend their life’s savings on divorce attorneys and court battles.

LEGAL BENEFITS:  Legally, collaborative divorce and mediation open an almost limitless range of options for resolving divorce issues that are frequently not available in court.  These options often serve families far better than the limited options that a judge faces. 

Nobody wants to think about divorce when they are thinking about getting married.  But, we do it anyway.   Rather than letting it be a scary idea that sits in the back of your mind, you can plan for that “what-if” before you get married.

After all, agreeing in a pre-nup not to go to war in the event of a future divorce is an act of love in itself.  And, it may be a good step towards ensuring that your pre-nup never matters.  

Divorce Insurance, Pre-Nups and Co-habitation Agreements in North Carolina

As this recent New York Times article points out, some people are choosing to begin their marriage with the (potential) end in mind.

Pre-nuptial (a/k/a pre-marital) agreements have been around for a long time.  The new trend is that couples that cannot, or do not want to get married are choosing to put their understanding about how their relationship will work and how it will end in writing up front. 

 In North Carolina, same sex couples cannot be legally married.  So, a pre-marital agreement is not an option. Given that the number of same sex couples in North Carolina has risen 68% since 2000, cohabitation agreements may become far more popular.

For heterosexual couples that want to live together but choose not to marry, a pre-marital agreement is likewise useless.

But, both kinds of couples have the option of executing a co-habitation agreement. 

This kind of agreement can set forth the understanding of how the relationship will operate.  For instance, the terms can state that one partner will stay at home to raise children, while the other is expected to earn the family funds at work.  Or, it can state that both parties will work outside of the home. The agreement can state how many children each party expects to have or adopt, how many vacations the couple will take and even whether one of the partners is expected to cook meals (I have actually seen that).

More commonly, these co-habitation agreements pre-arrange how (but not if) the relationship will end.  The terms often set forth how assets and debts of the relationship will be handled in the event of a break-up.  They can dictate what process the parties will use to determine these issues in the event of the break-up (Collaborative Law, mediation, etc…). 

Some see these agreements as cold or anathema to romance. But many couples are comforted to know that they have agreed not to drag each other through a nasty court battle if things don’t work out.  And, having a discussion about big important issues and expectations before entering a long-term relationship is a good idea, even if it does not lead to an agreement. 

As for divorce insurance, one company (in North Carolina of all places) thinks it’s a great idea. 

From my point of view, the best insurance for your marriage is to discuss the big issues before you get married, and then commit to really truly communicating during the relationship.  Discussing the terms of a pre-nuptial agreement encourages that conversation far more than simply buying an insurance policy.