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You Donít Need a Prenup if...

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 ifÖ

  • You and your intended have no children from another relationship . If you have prior children, you will have to address future concerns should the marriage fail (or even if it succeeds!).
  • You and your intended have no significant assets . Prenups generally protect significant assets (including some things that you may not have thought about such as business ownership, professional practices, retirement accounts and equity in property). If you have significant assets (even if your intended does as well), you need a prenup.
  • You have no realistic likelihood of inheriting any significant assets . Your parents or other benefactors will be concerned about leaving you property that may go to a spouse that did not remain married to the person they care about.
  • You and your intended are of similar ages . Disparity in ages means different concerns will arise at different times, e.g., health, earning capacity and retirement plans.
  • You and your intended have completed your schooling . If either of you is to receive the benefit of further education while the other earns income, the one getting the education benefits at the expense of the other. A prenup can prevent later disputes.
  • You and your intended have no parents that will ever need financial support . Many people accept a moral commitment to provide for their parents in the event that they are unable to take care of themselves. A prenup can specify how such funds will be provided, preventing later disagreements.
  • You and your intended are heterosexual . Although same sex marriages are available in several states, the law is still evolving on dissolution of these marriages, especially if the dissolution is to take place in a different state. For example, nonresidents of Connecticut can get married in Connecticut but not divorced. If they reside in a state that doesn't recognize the marriage, they face serious problems. A prenup can alleviate some of them.
  • You are not getting married !

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When dividing property, the Connecticut court considers the value of the homemaker's services. In brief marriages, the court will try to divide the property so that the parties are in the same financial condition as they were before the marriage. In longer marriages, the court will try to divide the property 50-50. Ultimately, the division of property may vary widely from case to case depending on the court's analysis of a number of factors.
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