SURVIVING PRENUPTIAL AGREEMENTS

Both parties must feel they are getting something out of the agreement. Good intentions may be undermined if the non-moneyed partner’s needs aren’t understood.

Whether for a first marriage or a return to the alter after the death of a spouse or a divorce, romantic feelings are tested when a prenuptial agreement is part of the preparation for marriage. However, when a couple approaches the agreement with honesty, deep regard for each other and sensitivity to the potential emotional and financial implications, it can help strengthen and sustain the relationship through a difficult time. Without this conscious effort, the union can be shaken to its foundation, creating irreparable misunderstanding and distrust.

At the time two people are committing themselves to marriage, each wants to feel that he or she is most important in the potential spouse’s life. Yet in reality, they are signing what may become a divorce agreement. Idealistic and hopeful couples harbour a secret belief that the emotional bonds and loyalty between them will protect them from possibility of divorce. Yet the prenuptial agreement symbolizes an allegiance to something other than the relationship: to a family, to assets or heirs. This devotion to something other than the relationship may feel so alien that it seems unreal.

Risking the conversation is essential as a couple approaches the process. Most often, both people feel vulnerable. The person initiating the document may do so out of a painful past experience, from anxiety regarding the future of a business or assets if there were to be a divorce, or from family pressure. The person who is asked to sign may have fears about the partner’s commitment or his or her own financial security. Both may fear losing the relationship if too much pressure is exerted of if one refuses to sign.

The more moneyed partner rarely talks about the impact, what its like to carry the burden of financial responsibility. He or she may wish the other would contribute more financially, even if the contribution is more symbolic than substantive. Few share with their partner the underlying fear of being taken advantage of. The less moneyed partner, who has less sense of financial autonomy, may feel at the mercy of the other who has money. He or she may feel shut out if the process of setting financial priorities. The person with greater financial resources usually initiates the prenuptial agreement. This built-in financial inequality can contribute to an imbalance of power in the relationship.

PRENUPTIAL GUIDELINES

It is never advisable to present a prenuptial agreement prior to convening a mutual discussion. Even when its clear from the beginning of a relationship that certain assets and income will remain separate, presenting the document as a fait accompli feels inequitable and may result in a refusal to sign.

Both parties must feel they are getting something from the agreement. It is an understanding between two people. The person initiating the document gains protection, while the person agreeing gets, at least, clarification. His or her financial situation must be discussed – how does he or she gain financial independence and security or create a net worth? Is it through a percentage of income set aside as separate property for the purpose of investments?

The person with less money does not want to appear greedy; alternatively, he or she may assume that, with time, the moneyed spouse will offer to help create financial autonomy. For the person with money, raising the issue may bring up distrust and suspicion of the partner’s deeper motivation for the marriage, yet without looking at the non-moneyed partner’s options and gaining an understanding if those financial needs, the good intentions both people bring to the commitment may well be undermined.

Solutions to this problem are highly individual and situations can quickly become adversarial. In these situations, a variety of advisors are often brought in – accountants, investment managers, trust officers and other trusted family advisors. However, the greatest potential for emotional damage is in the drafting of the document. The role of the attorney is critical to a positive outcome, however is not an easy task.

It is important to involve your attorney after an initial discussion between the couple. To the extent possible, know what you want going into the first meeting. The attorney’s job is to explain all the ramifications and to be informative regarding legislation. Discussing the desired goals before the first meeting sets the tone for the attorney and enables him or her to create a document that can meet those objectives.

In the initial discussion with the attorney, emphasis the important of the relationship. Since the lawyer’s job is to protect the interests of his or her client, the attorney drafting the document cannot represent both parties. In some situations, a couple can hire one attorney to draft the document. Each then seeks separate counsel to make sure his or her interests are represented. This works well, particularly when there is little or no disagreement.

When each person has his or her own attorney, it must be emphasised from the first meeting that there is to be no acrimony. It is key for attorneys to be sensitive to this issue because the language in these documents is, by nature, hostile. Sometimes the language in correspondence between attorneys and the couple questions the motivation of the people involved in such an inflammatory way that it fuels distrust and resistance to the goals. At times it is necessary to protect a client, but adversarial positions can tear at the fabric of the relationship.

Talk to each other, not through lawyers. Sometimes, a couple may feel that it is less difficult to express their needs through counsel. But there is potential for misinterpretation and misunderstanding. Emphasis expediency to all advisors. Feelings fester. Ask those involved to keep the process moving along. The vulnerability this sensitive subject causes, makes it essential to complete the process without unnecessary delays.

Once the agreement is completed, it is often hard to talk about it. Yet, if a couple can discuss and share things they wish they had done differently or said more diplomatically, they can apologize and let it go, then celebrate, strengthened by experience.

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