Prenups are generally thought of as romance killers and only necessary for the rich and/or famous. However, with later marriages, the failure of so many marriages, so many second (or third) marriages, prior children and assets acquired prior to marriage, prenups have become more and more relevant. Many clients ask me if they need a prenup. Naturally, any question to a lawyer that begins with "Do I need ---" usually receives a positive response. But, even asking the question implies an underlying need.

A prenup is analogous to a contract between two people entering into a business relationship. The parties often have their lawyers draw up agreements spelling out the rights, duties and ownership interests of the parties. Failure to do so often results in problems later if the business fails ("It was the other guy's fault and he should be responsible.") or succeeds ("It was due to my efforts and I should get more.").

The main value of negotiating such an agreement is to uncover what each party anticipates and considers important prior to entering into the relationship. Further, lawyers tend to look to the future and ask questions that neither party has thought about. ("What happens to the business if one of you dies?") Sometimes, the questions and answers end the prospective business before it starts. But isn't it better to find out a relationship has problems before entering into it?

Similarly, prenups uncover what each party anticipates prior to entering into the relationship ("Do you intend to have children?") and their thoughts about future issues that may arise ("What happens if one of you has to take care of a sick parent?") as well as what happens should the marriage terminate in divorce. Isn't it better not to enter a doomed relationship in the first place?

The simplest approach is to determine not if you need a prenup but if you don't. You don't need a prenup if…