Most people think of prenuptial agreements as something rich men use to keep their assets from falling prey to their new, less wealthy (and usually younger) wives — the gold-diggers.
Others see it as a sign of mistrust. If you need a prenuptial agreement, you must not trust your future spouse.
I see it differently.
When I married my wife, neither of us had assets to protect, so our agreement was not about protecting assets. Rather, it was about what in our relationship we would value and how we would value it. We committed it to writing because memories fade over time and because we are both lawyers.
Fifty percent of marriages fail. This sobering fact led me to put marriage off.
Financial attachment – or entanglement as I saw it – scared me most. Disagreements over money are often a cause of marital friction. Would my wife object to my $900 snow skis? (Yes.) Likewise, would I object to her ridiculously expensive shampoos and hair conditioners? (Yes.) Both of us wanted a marriage, but neither of us wanted to justify our individual spending choices to the other. We were, and still are, too independent for that.
But four years of dating was long enough. She told me to fish or cut bait.
So I proposed and she accepted. But for us, the next step wasn’t premarital counseling, or wedding planning.
It was drafting our own prenuptial agreement.
Our goal was simple: marry each other, have a family, and be equal partners in the enterprise. We both valued our independence. Neither of us wanted to be the “Mrs.” or “Mr.” of the other. (I wouldn’t take her last name so I didn’t expect her to take mine).
The terms were simple. We would each be a financial island, separate incomes and separate assets. Our wages and earnings would be separate property, free of any claim by the other. Each month we would contribute to a joint bank account for common household and entertainment expenses. We titled our house and cars jointly because we both contributed equally to buy them.
The kicker was how we treated the stay-at-home parent. It was unfair for one parent to miss out on wages while the other accumulated wealth, which according to our agreement would be “separate” property. And the non-earning parent would need income to contribute to the joint bank account. We agreed that the wage earner would pay the homemaker half his or her wages. Which parent would stay home did not necessarily default to mom. The decision rested on who most wanted to stay home, what the children would need, our relative salaries, and whose career could better sustain a long term absence. (Given dad’s inability to breastfeed, mom already had an edge).
We compare our marriage to running a business. Our prenuptial agreement is just like an agreement between business partners. It values and accounts for each partner’s contributions to the enterprise – whether they are sweat equity or cash. And each partner receives dividends, which are love, friendship, stability, accumulation of joint assets, children, and independence, to name a few.
We have a system for resolving conflict – both partners must agree on major decisions, which are usually purchases like a car or vacation. If we can’t agree, and it is important enough to one spouse, then he or she can use his or her own money.
If we divorce, we have a system for winding down the enterprise, which is made simple, because nearly everything is separate, and joint assets were purchased 50/50. We each walk away with what is already ours rather than argue about who contributed more.
Our friends and family thought we were crazy. To them, our prenuptial agreement was a sure sign we had doubts about the marriage.
We reduced the risk of future conflict by clearly defining our rights and responsibilities to each other. We weren’t thinking at the time, “let’s plan our marriage like a business so it will work.” But in retrospect, this is exactly what happened, and it was a smart move.
As a lawyer, I routinely advise business clients against handshake deals. I tell them to put things in writing because memories fade. I have yet to hear someone question this wisdom. Not once has someone suggested that a business without bylaws or an operating agreement is somehow more trustworthy because its promoters preferred unwritten deals or “industry standard.” We should think about marriages the same way.
Last year I left my job with a big law firm to help my wife run her small law practice. We’re trying to run the business like we run our marriage.
So far it’s working.