From Crypto to Embryos and Pets: What You Can and Can't Put in a Prenup with Laura Wasser
In this episode of Money Rehab with Nicole Lapin, divorce attorney Laura Wasser explains how prenuptial agreements serve as a form of marriage planning rather than divorce planning. She discusses the value of prenups for all couples, not just the wealthy, emphasizing how these agreements facilitate important conversations about finances, roles, and expectations within marriage.
The episode covers what can and cannot be included in prenuptial agreements, with Wasser explaining that while financial provisions are typically enforceable, personal behavior clauses often lack legal standing. She outlines how prenups can be modified when circumstances change, describes the conditions under which they might be challenged, and details the legal safeguards that help ensure these agreements remain valid and binding.
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1-Page Summary
The Importance and Purpose of Prenuptial Agreements
Nicole Lapin and Laura Wasser discuss how prenuptial agreements are essential for all couples, not just the wealthy. According to Wasser, these agreements should be viewed as "marriage planning" rather than "divorce planning."
Understanding Prenuptial Agreements
Wasser explains that prenups foster vital communication about finances, roles, and expectations within marriage. She emphasizes that these discussions, while potentially uncomfortable, help couples address important topics like student loans, living standards, and family responsibilities. The process requires couples to share detailed financial information, setting a foundation for how they'll manage their finances together.
Legal Aspects of Prenuptial Agreements
While couples can include various stipulations in their prenups, Wasser notes that not all clauses are legally enforceable. Personal behavior clauses, such as weight loss requirements or social media restrictions, often lack legal standing. However, clauses dividing assets, debts, and spousal support based on the couple's financial situation are typically enforceable.
Wasser points out that judges can invalidate prenups if they're deemed unconscionable or signed under duress. In California, for example, there's a mandatory seven-day waiting period after finalizing a prenup before signing to prevent claims of undue pressure.
Modifying and Challenging Prenuptial Agreements
According to Wasser, prenups can be modified when both parties consent, particularly when significant changes occur in the couple's financial situation. However, she cautions that modifications should be approached carefully to avoid the appearance of "divorce planning."
While challenging a prenup is possible, Wasser explains it's typically difficult. Challenges usually center around claims of duress, unconscionability, or insufficient review time. Most prenups include prevailing party clauses that require the challenging party to pay attorney's fees if they lose, deterring frivolous challenges.
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Counterarguments
- While prenuptial agreements can foster communication, they may also create tension or mistrust if one party feels pressured or if the agreement seems to favor one side disproportionately.
- The idea that prenups are essential for all couples can be debated, as not all couples have significant assets or complicated financial situations that would necessitate such an agreement.
- Viewing prenups solely as "marriage planning" might be overly optimistic, as they inherently involve considerations for the possibility of divorce.
- Some individuals may believe that discussing and planning for the potential end of a marriage can introduce a negative mindset or self-fulfilling prophecy into the relationship.
- The legal enforceability of certain clauses can vary widely by jurisdiction, and what is enforceable in one place may not be in another, which can create confusion and potential legal challenges.
- The mandatory waiting period in places like California, while intended to prevent duress, may not be sufficient to ensure that both parties fully understand the implications of the agreement.
- The modification of prenups might not always be as straightforward as suggested, especially if one party is less willing or if the power dynamics in the relationship have changed.
- The presence of prevailing party clauses in prenups could potentially discourage legitimate challenges to unfair agreements, not just frivolous ones.
Actionables
- You can create a "marriage mission statement" with your partner to establish shared values and goals that align with your financial and personal expectations, similar to how a business would. This exercise encourages open communication and can serve as a foundation for drafting a prenuptial agreement that reflects your mutual vision for the marriage. For example, you might decide that supporting each other's career goals is a priority, which can then be translated into how you manage income and assets in your prenup.
- Organize a "financial date night" where you and your partner regularly review and update your financial information, including any debts and assets. This keeps both parties informed and can be a natural setting to discuss potential modifications to your prenuptial agreement if your financial situation changes significantly. For instance, if one of you receives a large inheritance or promotion, you can discuss how this impacts your financial planning and prenup terms.
- Develop a personal checklist of non-negotiables and negotiables for your prenuptial agreement that reflects your individual values and concerns. This personal reflection can help you enter discussions with your partner more prepared and ensure that the prenup addresses your most important issues. For example, if you're passionate about a particular asset like a family heirloom or a business you've built, you'd list that as a non-negotiable to be protected in the agreement.
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The Importance and Purpose of Prenuptial Agreements
Nicole Lapin and Laura Wasser highlight the importance of prenuptial agreements for all couples, not just the wealthy or famous, asserting their essential role in marriage planning.
Prenuptial Agreements Are Essential for all Couples
Prenups Offer Clarity and Protection For All, Regardless of Finances
Nicole Lapin argues that prenuptial agreements are important for everyone, stressing that they offer clarity and protection regardless of one's financial situation. Laura Wasser adds that a prenup lays out what each partner has and owes at the beginning, setting the stage for ongoing participation in financial decisions.
Prenups Are "Marriage Planning" Rather Than "Divorce Planning"
Wasser insists that discussing a prenuptial agreement is part of marriage planning, fostering vital communication about finances, roles, and expectations within the marriage.
Discussing a Prenup Fosters Communication About Finances, Roles, and Marital Expectations
Wasser finds it baffling that there's little preparation required before marriage beyond obtaining a license. She underscores that a lawyer is needed to create a prenuptial agreement, ensuring couples understand the contract they sign, which is more important than any wedding vendor's contract. People often mistake this as pre-negotiating a divorce, but Wasser challenges them to consider the legal implications of their marriage in terms of asset division and spousal support. She highlights that discussing these terms fosters better understanding and partnership.
Furthermore, Wasser likens the awkwardness of prenup discussions to the intimate experience of childbirth, emphasizing the importance of these conversations despite their discomfort. Such discussions enable couples to express expectations about various aspects of life, including student loans, standards of living, and caregiving for aging parents, which contributes to a healthier marriage dynamic.
Couples Should Discuss Finances, ...
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Counterarguments
- Prenuptial agreements may not be necessary for all couples, especially if they have similar financial situations or little to no assets.
- Some may view prenups as unromantic or distrustful, potentially causing tension before marriage.
- Prenups can sometimes create an imbalance, especially if one party has significantly more resources to afford better legal representation.
- The process of creating a prenup can be costly, which might be a barrier for some couples.
- Prenups may not cover all future financial issues, as they cannot predict all changes in circumstances or laws.
- Discussing a prenup might lead to uncomfortable conversations that could strain the relationship if not handled sensitively.
- The enforceability of prenups can vary by jurisdiction and over time, which may lead to a ...
Actionables
- Create a 'financial biography' to share with your partner, detailing your financial history, beliefs, and goals. This document can include your income, debts, assets, credit score, and even your attitudes towards spending and saving. By presenting this to your partner, you encourage a culture of openness and set the stage for a prenup discussion that's grounded in mutual understanding.
- Develop a 'marriage syllabus' with your partner, outlining the subjects you both need to discuss and learn about together before tying the knot. This can range from financial planning and investment strategies to household responsibilities and personal growth goals. Treat it like a course you're taking together, complete with 'assignments' such as researching life insurance options or creating a joint budget.
- Host a 'financial date night' once a month where you and ...
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Legally Enforceable and Unenforceable Prenuptial Clauses
Navigating the complexities of a prenuptial agreement, Laura Wasser sheds light on what factors can lead to enforcement or nullification within the legal system.
Couples Can Agree To Anything In a Prenup, but Some Clauses May Not Be Enforceable
When drafting a prenuptial agreement, couples may feel inclined to include various stipulations beyond financial matters; however, not all clauses withstand legal scrutiny.
Personal Behavior Clauses Often Unenforceable
While Wasser acknowledges that a prenup can include many types of clauses, she underscores that her firm only includes enforceable ones to avoid potential legal issues. Unenforceable requests she provides as examples include clauses that impose penalties for not losing baby weight or for leaving the toilet seat up. Additionally, she cites Hollywood rumors such as an addiction clause in celebrity prenups and extramarital stipulations, questioning their legal standing. Even with infidelity clauses, although there might be an agreement, it's unclear how these would hold up if legally challenged. Indeed, people might comply out of guilt, yet their enforceability in court remains uncertain.
Wasser and Lapin also discuss non-disparagement clauses, which have gained relevance in an age where anyone could potentially become an influencer. They emphasize the significance of such clauses, especially when children are involved, as disparaging the other parent may not be in the best interest of the child. Yet, they concede that despite their inclusion in prenups, enforcement poses a challenge, especially when damaging remarks are spread on social media.
Enforceable Clauses Divide Assets, Debts, and Spousal Support Based On the Couple's Financial Situation
In discussing assets and debts, Wasser clarifies that agreements should include enforceable clauses allowing for an equitable division, yet they should pass legal muster. For instance, clauses related to trust funds set up by parents are crucial, as parents often wish to preorder their money's division to ensure it's not simply lumped into a divorce settlement. Additionally, the lifestyle funded by such trusts is typically considered when determining spousal support, although tangible benefits like vacations or family jets aren't necessarily replicated, as they are seen as perks of being in a family, not of the marriage solely.
With embryo custody now being seen as an asset, couples are advised to ensure their prenups align with fertility clinic agreements to prevent conflicts. The overlap between fertility law and prenuptial agreements showcases the evolving nature of what can b ...
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Actionables
- Create a prenup checklist that focuses on financial and asset-related clauses to ensure enforceability. Start by listing all your assets, debts, and any trust funds or inheritances you might have. Then, research your state's laws on prenuptial agreements to understand what can be included. Use this information to draft a checklist that prioritizes financial clauses over personal behavior clauses, ensuring that the agreement you create is focused on enforceable terms.
- Schedule a prenup discussion with your partner well in advance of any wedding plans. To avoid any perception of duress, initiate conversations about a prenuptial agreement months before an engagement or wedding date is set. This allows ample time for both parties to consider their options, seek independent legal advice, and negotiate terms without pressure. Mark your calendar for periodic check-ins to review and adjust the agreement as needed, ensuring that both parties feel comfortable and informed throughout the process.
- Attend a prenuptial agreement workshop with your partner to gain a deeper unders ...
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Modifying and Challenging Prenuptial and Postnuptial Agreements
The legal landscape around prenuptial and postnuptial agreements is complex, with specific conditions under which these agreements can be modified or challenged.
Prenuptial Agreements Can Be Modified With Consent
Laura Wasser explains that prenuptial agreements can be modified, but only when both parties consent to the changes.
Prenup Revisions Warranted by Changes in Finances or Lifestyle
Wasser details situations where modifying a prenup may be necessary—such as when there's a significant change in the couple's financial situation. One example is when one spouse experiences unexpected success, meriting an update to previously agreed terms of spousal support.
Update Prenups Cautiously to Avoid "Divorce Planning"
Additionally, Wasser addresses that while prenups can be fully modified through mutual agreement, such amendments, or a complete discard of the prenup, should be done cautiously. This includes the process of creating a postnuptial agreement, which might be perceived as "divorce planning" if it’s followed by a divorce in a short time. Moreover, changes in a postnuptial agreement might reflect changes in the relationship, and while the intention behind a postnup is to remain married, the implications of timing and the changes requested should be considered thoroughly to avoid the appearance of divorce planning.
Challenging a Prenup Is Possible, but Difficult
Challenging a prenuptial agreement is an uphill battle due to the legal stipulations that protect their enforceability.
Challenging a Prenup: Duress, Unconscionability, Insufficient Review Time
According to Wasser, prenups can be challenged on several bases, including duress, unconscionability, or insufficient review time. She elaborates that, especially in the last few years, disputes over prenups often centered around ...
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Clarifications
- A prevailing party clause in a prenuptial agreement specifies that if one party challenges the agreement and loses, they may have to pay the attorney's fees of the prevailing (winning) party. This clause acts as a deterrent against frivolous challenges to the prenup, encouraging parties to think carefully before contesting the agreement. It aims to discourage challenges unless the challenging party has a strong legal basis for doing so. The clause helps maintain the enforceability of prenuptial agreements by imposing potential financial consequences on the party who unsuccessfully challenges the agreement.
- Duress in the context of prenuptial agreements means that one party was coerced or forced into signing the agreement against their will. Unconscionability relates to terms in the agreement that are extremely unfair or one-sided, to the point where it shocks the conscience. These grounds provide legal avenues for challenging the validity of a prenup if it can be shown that one party was unduly pressured or if the terms of the agreement are so unjust that they should not be enforced.
- In postnuptial agreements, the timing of making changes and the nature of the modifications requested can impact how the agreement is perceived. Changes made soon before a divorce might raise suspicions of "divorce planning." The reasons behind the alterations and the timing should be carefully considered to avoid any negative perceptions. Postnuptial agreements are meant to strengthen marriages, so changes should be approached thoughtfully to maintain trust and transparency in the relationship.
- Misconceptions at the time of signing cohabitation or p ...
Counterarguments
- While prenuptial agreements can be modified with consent, obtaining this consent may be challenging if one party benefits from the current terms and does not wish to change them.
- Modifications based on changes in finances or lifestyle might be seen as fair, but they could also introduce uncertainty into the marriage, potentially undermining the stability that the original prenup was intended to create.
- The caution advised in updating prenups to avoid "divorce planning" could lead to couples avoiding necessary updates to their agreements, which could result in unfair or outdated terms persisting.
- Although challenging a prenup is described as difficult, this characterization might discourage individuals from seeking justice when they have legitimate claims, potentially perpetuating unfair situations.
- The assertion that prenups can be challenged based on duress, unconscionability, or insufficient review time does not account for the possibility that some individuals may not have the resources or legal understanding to effectively challenge a prenup even when the ...
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