Yes, because more people are getting married when they’re older, which means they have more substantial incomes and more substantial assets and holdings even in first marriage situations. They are more inclined to want a prenuptial agreements for life planning. Prenuptial agreements now also apply to gay marriages as well as heterosexual marriages, so there is an entirely new type of couple coming into the marriage with significant assets and significant incomes. It is often now even seen as a necessity in order to protect people because divorce is more common in the modern era; in the past perhaps 20% of married couples got a divorce, whereas it is now around 50%. People are more divorce-minded now and are more willing to anticipate the possibility of divorce going into the marriage. They hope for the best but plan for the worst, and planning for the worst essentially means a prenuptial agreement.
Why Have Prenuptial Agreements Been Looked Down Upon Over The Years?
The reason might be because prenuptial agreements can be difficult to negotiate, and they can put a strain on the relationship because of the realities of negotiating a business relationship in the context of a marriage. The other reason might be because they are enforced at a time when the parties are typically angry with each other so they develop a certain degree of buyer’s remorse once they realize that what they agreed to 10, 15 or 20 years ago is now going to be enforced, such as a waiver of spousal support and issues like maintaining separate property rather than converting it to community property. They second guess the wisdom of entering into the prenuptial agreement and blame it either on the agreement, the attorney, or somebody other than themselves when, in fact, they are the ones who made the conscious decision to agree to it when they had every right to refuse it; however, doing so at the time would have meant they were unable to marry the person with whom they were in love with, so they make the prenuptial agreement the bad guy in the scenario.
Another reason is that a lot of times one of the parties go into the negotiations with very strong demands: no support, all the earnings remaining separate, all their property remains separate despite community contributions, and that the other party would contribute equally to the common fund for payment of expenses despite significant differences in earnings. The less dominant party sees this as an overbearing advantage being taken on the part of the other party and it can affect the relationship adversely.
What Is A Good Way To Approach The Subject Of A Prenuptial Agreement?
This should be discussed early on in the relationship, if the parties are thinking about marriage, rather than springing it later in the game. One way to do it would be for the party who thinks that the prenuptial agreement is a good idea to contact an attorney for a joint meeting where the pair can sit down and simply discuss the benefits and disadvantages in a neutral setting. The joint attorney will not represent either of them in the actual drafting of the agreement, because that would constitute a conflict of interest. This way the reluctant party would understand that their partner was not being greedy, and it can protect both of them if a divorce does occur, although I have not seen that approach used very often.
This approach has its merits, particularly if an appointment is made with a “collaborative” attorney, whose practice is geared towards mediating divorces rather than engaging in adversarial divorces. They can take some of the emotion out of the decision by applying logical analysis to demonstrate how both parties may be advantaged by the prenuptial agreement. In any event, at the end of the day, they remain a difficult thing, because it is business mixed with love, which can be a very difficult thing to do.
Are There Cases Where One Spouse Is Hesitant To Agree To The Prenuptial Agreement?
Yes. One of the reasons the time requirements on the attorney’s part become so significant is because a whole host of very difficult decisions need to be made, and there might be a lot of resistance from the other side if the attorney for the party is vigorously representing their client. It can take a great deal of effort to overcome some of these issues. I have never had an agreement fail where the parties were unable to get to terms, although I have spent a significant amount of time in order to get them there and to overcome some of the emotional responses and resentment that gets generated trying to negotiate a business relationship with a person they love. The fundamental problem is that they are mixing love and business, and it becomes a very volatile mixture.
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