I recently went to lunch with a  former divorce client of mine who I now also consider a friend.   I’ll call him John.  As part of his divorce settlement, John was required to pay a substantial sum to his ex-wife to buy her out of his business.  During our lunch, John told me he is now dating a wonderful woman who he cares for very much.  I’ll call her Lisa.  John and Lisa have talked about getting married.  It would be John’s second marriage and Lisa’s third.  Given his experience in his first marriage and the reality that second (or third) marriages fail even more often than first marriages, however, John is reluctant to tie the knot without getting a premarital agreement in place to protect his business.

John told me that when he raised this issue with Lisa, she was hurt.  If John really loved her and was committed to her, why would John want her to sign a premarital agreement?  Is he already planning to divorce her?  John, on the other hand, is hurt that Lisa won’t sign the prenup.  They aren’t raising children together.  He’s not asking her to quit working and stay at home so he can advance his own career at the expense of hers.  She’s supporting herself now and not relying on him.  So if this is about love and not money, why wouldn’t she sign the prenup?

Who is right in this situation?  If John really loves Lisa and intends to form a lasting relationship with her, should he ask her to sign a premarital agreement?  If Lisa loves John for him and not for his money, should she refuse to sign the agreement?

If you are reading this post, you probably have an opinion, and I suspect your opinion surprisingly does NOT hinge on whether you are a man or a woman.  Instead, I suspect your opinion hinges on whether you view yourself as a person who would go into a marriage with income and assets to protect or not.  John feels the way he feels because he has an asset, his business, which he wants to protect.  Lisa, on the other hand, brings no real assets to the table.  She has only modest income, and she doesn’t have an asset that she could stand to lose in the event her marriage to John doesn’t work out.  A premarital agreement does nothing for Lisa; it only helps John.

For couples considering marriage, broaching the subject of a prenup will always be awkward at best.  Surely many a relationship has been stopped in its tracks by one party’s insistence on a premarital agreement.   Given the reality of today’s high divorce rates, however, especially in second marriages, individuals with assets and income to protect are advised to enter into a comprehensive premarital agreement drafted by an experienced matrimonial lawyer before saying “I do.”

Copyright © 2011 by Scoresby Family Law – J. Kyle Scoresby, P.C. All rights reserved.