10 Steps for Drafting a Prenup
“The most common reasons for divorce are sex and money,” a former divorce lawyer and current bride-to-be cautions me over the phone. Ms. Kelsey V. Eisen, Esq. used to litigate nasty divorces amongst the San Francisco upper crust—the kind of people who have the time and resources to spend $10,000 arguing over the custody of a labradoodle with crippling social anxiety—and yet, she is in the midst of planning her own wedding in June. To what does she owe this particular leap of faith? Prenup, baby!
Prenups (prenuptial agreements) have a bad reputation for being unromantic or pessimistic. Eisen tells me that they are actually a great way to measure your relationship’s emotional health. “If you can’t have an honest discussion with your partner before you enter a legal contract that changes your financial situation”—she’s referring to marriage—“then you’re not ready to get hitched.” In her experience litigating divorces, many couples did not understand their partner’s values around money or other monumental lifestyle choices, leading to those dreaded irreconcilable differences.
The bottom line is, “You either have this conversation now while you’re level-headed about the relationship, or you could end up spending tens of thousands of dollars litigating your feelings and resentments in a divorce.” According to Eisen, even those who start their divorce process “amicably” have trouble resisting the urge to make it a (very expensive) excuse to air out petty grievances. At the end of the day, “Prenups are romantic,” Eisen explains. “A prenup is proactive, it’s self-advocacy, and it’s advocacy for your relationship.”
Since we’re approaching wedding season, below are 10 sexy steps for spicing up your prenup process with your partner.
1. Cuffing Season
“You should live with your partner for at least two years before you get married,” Eisen advises. She’s seen a lot of marriages come to an end, and they almost always involve frustrations around cohabitation. This is less about annoying habits like snoring, and more about your compatibility in running a household. Do you go 50/50 on the chore wheel? Do you like to travel the same amount? Do you envision living in a mansion, apartment, shack, or house? This is the time to find out if you’re compatible or learn to live with your differences. Spoiler alert: turns out a lot of people can’t actually “learn to live with it”—save your money and find that out sooner rather than later.
2. Pillow Talk
What’s sexier than having a detailed conversation on how you plan to run your life together? It shows your partner you’re serious about a long-term commitment. If you still haven’t told your partner you’re thinking of quitting your corporate job someday to enroll in clown school, thus dramatically altering your shared income—this is the time. How many kids do you really want? Do you even want kids? Maybe it’s time to talk about the fact that you haven’t had sex in three months. If one of you is already frustrated with that, are your differing expectations around sex going to magically disappear when you get married? Nope. If you can’t get through a conversation on these deeply personal questions, you are NOT ready to get married.
3. Choose Your Fighter
If you survived the first two steps, you’re ready to lawyer up. There are a few ways to do this, including a collaborative process, a shared attorney, or the soap-opera style of “getting served” by your 78-year-old billionaire boyfriend on the day of the wedding (not recommended). Eisen highly recommends a collaborative process. This means you and your partner each get your own attorney and they work together to write the agreement, each one advocating for you and your spouse. “To get your money’s worth out of making an agreement that will actually be effective later on,” Eisen says, “each party having their own lawyer is absolutely ideal and worth it.”
This is the part where you split off with your respective attorneys and tell them everything. Do you actually want a shared bank account with your partner? Do you have trauma around money? Explore your desires, hangups, and fears about the logistics of your partnership so that your lawyer can advise you on how to best protect yourself. “Millennials are now the main age group getting married, but we’re also the children of the most divorced generation of all time: Baby Boomers. Almost all of us have some type of baggage around marriage,” explains Eisen. Talk it all out so your lawyer can be prepared to address your concerns.
5. Make a List
Your lawyer is going to ask you to make lists of all of your assets, expenses, and income. If this seems tedious, convince yourself this is an expansive gratitude list, just slightly (much) more detailed. Your lawyer will give you forms to write down everything you have—savings, designer handbags, 401K, etc.—and everything you owe—student loans, outstanding debts, car payments, etc. If you’re like me and the most valuable thing you own is an Ikea couch, then this shouldn’t take you very long. Make a list of your belongings, including all the purchases you made as a couple. These lists ensure that all the property you have before the marriage remains yours after a messy split. And no, he doesn’t have to list that Reservoir Dogs poster, no matter how valuable he thinks it is.
6. Group Therapy
This is the part where you, your partner, and your two lawyers come together with all the information listed above and start putting everything together. “Usually long-time family lawyers have a certain degree of emotional intelligence and are experienced at how to match up your goals and facilitate conversations to resolve discrepancies,” Eisen adds. Argue about dog custody and divvy up that Beanie Baby collection so you don’t end up like these idiots.
7. Role Play
Before your attorneys dot all their i’s and cross all their t’s, they’ll probably ask you some questions you’d never thought of before. Can your beloved stay in the house you bought together if you die? Will your estate continue to pay your share from beyond the grave? What if they move their new spouse in? (Jerk.) It’s time for you and your partner to role-play all the potential “what if’s” that could occur in your post-nuptial years. What if your partner gets seduced by Hollywood and gives all their money to the Church of Scientology? Do you want to give half your assets to that bozo after you split? While hopefully nothing this tragic/mortifying occurs, talking out all the conditions of spousal support and other post-nuptial issues not only helps prepare for the worst, but further prepares you and your S.O. for all the realities of a lifelong legal commitment.
Now that your lawyers have finalized that first draft the negotiation can begin. Each partner has the chance to go through the draft with their respective attorneys, and each side can propose any changes and revisions they desire. This could be a long process with a lot of back and forth, but Eisen promises it’s cheaper than doing it in divorce court. And if this sounds too boring, you can stage it like the contract negotiation scene in Fifty Shades of Grey, but instead of “anal fisting” you’ll be negotiating spousal support in the case of horrific and unexpected accidents. Keep in mind that anything can happen! Eisen explains, “I worked on four divorces where a head injury changed a party’s personality enough that it led to a divorce. Four! No matter how solid you think your relationship is, life happens, and it never hurts to be prepared.” So get ready to negotiate some legal language, and maybe start wearing helmets and seatbelts more often.
9. Going Postal
Here’s a cute date idea: go to the notary public at the post office and get those initials on every page! “A prenup is also a plan for your marriage—not just your divorce,” says Eisen. It is actually a very romantic date idea to legally commit to all the “what if’s” in your marital future.
10. Signed, Sealed, Delivered… I’m Yours
Now it’s time for the ol’ John Hancock! Autograph your legally binding prenup and make sure you and your attorneys have multiple copies. Now that you’ve removed all the existential dread from your upcoming marriage, you can get back to focusing on the stuff that matters: figuring out what you want for dinner even though you said you were ‘down for anything’ but all your partner’s suggestions sound bad.
Special thanks to Ms. Kelsey V. Eisen, Esq. attorney at the California-wide firm Burke, Williams, & Sorensen, LLP.
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