5 Prenuptial Pitfalls to Consider -- Having One May be Bad for Your Marriage

This article provides an overview of five potential prenup pitfalls that future spouses should think about before signing away their legal rights.

Updated by , Attorney · UC Law San Francisco
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Many articles extoll the virtues of entering into a prenuptial agreement prior to your marriage. However, there are some downsides to a prenup that should also be considered. This article provides an overview of five potential prenup pitfalls that future spouses should think about before signing away their legal rights.

Pitfall 1: Negotiating a prenuptial agreement may irrevocably damage your relationship and make divorce more likely.

In the context of a prenup, there is usually an "initiator" spouse (the one who wants the prenup) and a "compliant" spouse (the spouse that is being asked to agree to the terms of a prenup). The dynamics of prenup negotiations may set up a bad pattern for the marriage.

Some fiancés pushing for a prenuptial agreement may be demonstrating a lack of faith in their partner and a lack of commitment to the marriage. This can cause the compliant spouse to feel a lack of connection to the initiator fiancé and feel like the initiator is cold or callous.

In addition, negotiating a prenuptial agreement is anything but romantic: and if prenup discussions become tense or difficult, that can destroy a portion of the couple's love – before they've even had the chance to enjoy their wedding.

Negotiating finances is a harsh business, and it's often made harsher by a couple's lawyers. Generally speaking, both fiancé's should hire attorneys to negotiate and draft a prenup on their own behalf, because the agreement may not be enforceable without involvement of separate legal counsel. Most lawyers representing parties in prenuptial negotiations act as if it the entire transaction is purely business. Although some aspects of a romantic partnership may require the partners to focus on money and financial health, marriage is not a business.

Often the initiating party (or that party's lawyer) says, "After the wedding, you can just put the premarital agreement in a drawer and forget about it." But of course, that's not true and not really, entirely possible. The premarital agreement cannot simply be forgotten – it's a legal contract that both parties are bound to live by. There may be some resentment on either or both sides about what was given up, or not agreed to. This resentment may rear its ugly head in all aspects of the marriage.

Pitfall 2: When the two parties negotiating a prenuptial agreement do not have equal bargaining power, the agreement tends to be coercive.

For example, when one fiancé asks for a prenuptial agreement very close to the wedding date, after the invitations have been sent out, the negotiation is inherently unfair. The other fiancé may feel extreme pressure to agree to anything just so the wedding isn't cancelled. In fact, under such circumstances, the compliant fiancé can claim that he or she did not have sufficient time to consider the prenup and was under extreme duress when signing it – in this case, the compliant spouse could have a very strong case for having the prenup overturned.

There are other, less extreme ways for bargaining power to be imbalanced. Maybe one fiancé is not very savvy with business or money matter, and isn't sure what he or she is being asked to give up. Maybe the initiating fiancé is very influential and almost intimidating to his or her partner, such that the compliant fiancé can't imagine pushing back or asking questions about the prenup and feels that it's impossible to say no to the proposed terms of the contract.

Even mediators can be insensitive or unaware of any power imbalance when assisting clients in negotiating a prenuptial agreement. Mediators should try to determine whether the agreement proposed by "both parties" may be really the thoughts of only one, and whether the other party feels coerced. All motivations and feelings should be exposed and discussed in the mediation prior to proceeding.

Pitfall 3: Prenuptial agreements may be inappropriate for couples entering into first marriages, even if there is a big difference between their incomes and assets.

Marriage is an exciting joint venture. An important part of the joint venture of marriage is the financial partnership. A spouse may correctly feel that some of this aspect of the marriage has been taken away if a premarital agreement decreases that spouse's rights.

State divorce laws are designed to handle the issues of disparity of income and disparity of premarital assets if and when the spouses get divorced. So insisting on a prenuptial agreement that may end up harming the relationship may not be a sensible trade-off.

However, prenuptial agreements can be highly useful for people entering into second marriages and who have children from their first marriage. A prenup can balance a spouse's loyalty to the new spouse with the spouse's concern and loyalty to his or her children of the first marriage.

Pitfall 4: A prenuptial agreement often damages the relationship between the two families-of-origin.

An initiating party (or the initiating party's parents) may want a financial agreement prior to the marriage due to the existence of family wealth and propose a premarital agreement that excludes all family property from the marriage, forever. Result: the future spouse's family feels humiliated and disrespected, and never forgets the rebuff. This is not good for the relationship, as it will result in family-of-origin conflict that will be present during the entire marriage.

A common example is where the initiating fiancé (Spouse A) doesn't want a prenuptial agreement, but Spouse A's parents insist. The prenuptial agreement is made and agreed to, but the compliant spouse feels that Spouse A was unable to stand up to his or her parents – the compliant spouse loses respect for Spouse A and Spouse A's parents.

When one party's family-of-origin tries to control the marriage through a prenuptial agreement, it disturbs the delicate balance in a couple's relationship and makes it more likely to fail.

Pitfall 5: Oftentimes, the terms of a prenuptial agreement are unfair at the time of divorce and the spouses end up in court battle anyway.

Prenuptial agreements do not always eliminate divorce court battles.

Sometimes, premarital agreements give a spouse a fraction of what he or she would be entitled to under state law. Although the outcome tends to support the notion that the deal made in the prenuptial agreement years earlier was unfair to that spouse, courts routinely enforce prenups that result in an unfair outcome, but will take a second look when enforcing the prenup would create such a disparity of wealth that the disadvantaged spouse would end up close to destitute or on public benefits.

When a couple that had a prenup decides to divorce, and the prenup seems to result in an unfair result to one spouse, that spouse may very likely go to court to try and have the prenup set aside and request that the court use the laws of the state to make decisions about alimony and property division. Court cases that involve the validity of a prenup can be very expensive and time-consuming – they can literally drag on for years. So, it's important to realize a prenup (especially an unfair prenup) is no guarantee that you'll avoid divorce court.

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