[Part I] Prenuptial Agreements and Your Engagement

Many spouses contemplating marriage know that they need a prenuptial agreement but also would like to avoid a potential backlash from his or her fiancée. Concerns about broaching the subject of a prenuptial agreement are understandable because they may be viewed as jumping in the deep end of the pool while wearing a life jacket. When discussing the issue of a prenuptial agreement with a prospective spouse, it is important to make sure your future marital partner understands that you are not considering this instrument because of a lack of commitment or expectation that the marriage will fail. Because this is such a difficult topic for many couples to discuss we have provided some suggestions for how to broach the issue of a prenuptial agreement with your future spouse.

Us Instead of Me:

When the issue of a prenuptial agreement is raised, the party that suggests creating this type of marital contract often uses phrases like “I need” or “I want.” When this approach to discussing a prenuptial agreement is employed, it may create the impression that the agreement is designed for the financial protection of the spouse suggesting the agreement. In reality, a prenuptial agreement provides protection and predictability for both parties. If this is a second marriage for either party, the tragic death of a spouse can raise potential issues involving inheritance and property rights if there are children from a prior marriage. When a prenuptial agreement is drafted, the rights of your future spouse can be expressly protected so the document is for the benefit of both parties. This means that your prenuptial agreement is viewed as something to protect “us” as opposed to protecting “me.”

The Earlier the Better:

The suggestion that you create a prenuptial agreement should be brought up far in advance of the wedding. Ideally, you may wish to raise the issue before you are engaged so that the process of negotiating the terms of the prenuptial agreement are simply part of the many tasks to be completed prior to the big day rather than a distracting side issue. By broaching the subject early, this also permits the negotiation and drafting of the prenuptial agreement to be grouped with other pre-wedding planning matters to be handled so that it can be separated from the romantic emotional part of the engagement period. If a party waits until the big day is approaching and money has been invested, this may even create potential defenses to enforcement of the prenuptial agreement if the marriage does not work out.

The above information is provided to illustrate general principles of law and should not be interpreted as a specific legal opinion on an individual case. You should contact experienced legal counsel to get specific legal advice that is based upon your specific circumstances.

If you have questions about the prenuptial agreements, Jay Goodman & Associates offers legal advice and representation in the full spectrum of family law issues. We offer a free consultation in our centrally located offices in Santa Fe and Albuquerque so that we can discuss your options. Call us today to schedule your free consultation at (505) 989-8117 to learn about your rights and options.