Do you need a prenup? What we learned from lawyers and therapists

I’ve learned that telling people I’m engaged means answering a lot of follow-up questions. Have you decided on a date? Do you have a venue? And from more bold people, or people who know I write about money, are you guys going to get premarital sex?

I never thought about it until I got engaged. I thought prenuptial agreements were something famous actors did when they married for a third time — a way for wealthy people to avoid losing half their wealth in divorce.

I’m a little more advanced in my career than my fiancée and have been able to save a little more. But neither of us have family jewelry or trust funds to protect.

Another reason I didn’t think about it was because it felt weird and pessimistic to think about divorce while planning a wedding.

So I decided to ask some lawyers and even a financial therapist about this. These conversations convinced me that discussing premarital sex with my fiancé is probably the smart thing to do, even if it feels a little weird.

“I don’t think everyone who is getting married soon needs to have a prenuptial agreement,” says Kelly Frawley, director of marriage and family law at the Kasowitz Law Firm in New York City. “But I think people who can afford to meet with a family law attorney should meet with a family law attorney in the state where they intend to live as a couple.”

Laws regarding the division of marital property in the event of divorce vary by state and typically follow one of two models.

In “community property” states such as Arizona, California, and Nevada, courts typically order that assets, income, and debts acquired during the marriage be divided 50/50. States that follow the more general “equitable distribution” model generally aim for a “fair” rather than equal division of assets.

In the latter model, a pensioned firefighter “might argue, ‘I saved a life, I risked a life,'” says Rock Rochereau, a divorce lawyer and managing partner at Wright Lawyers in Las Vegas, Nevada. “So the judge will probably give him 60% instead of just 50%.”

As the experts I spoke with explained, if you divorce without an agreement, the court, not you, will decide how to divide you and your partner financially.

“What a prenup does is basically say you’re an adult and can enter into a standard division agreement,” Rochereau says.

Maybe you think a particular account should be split 70/30 instead of 50/50, given how things were before the marriage and how much you intend to contribute to the account. Maybe you’re happy with splitting your marital assets right down the middle, but you don’t want the possibility of paying alimony looming over your head. Perhaps you just want to make sure you keep everything you brought to your marriage.

By making concrete wishes now, Rochereau says, you can avoid potentially costly legal battles down the road. “If you don’t have premarital sex, standard law will apply.”

I was generally advised that my fiancé and I would need to hire a lawyer to achieve a prenup. An attorney should draft the contract on behalf of one spouse, and the other spouse should review the contract on behalf of the other spouse. Rocheleau said that hiring a lawyer who specializes in matrimonial law can generally be expected to cost between $3,000 and $4,000.

Both attorneys said the process should begin well in advance of the wedding. First, having a prenup too close to the day of the marriage makes the agreement legally unstable, as it could be considered coercive.

“It’s counterintuitive, but in an ideal world you would start having those conversations before you get engaged,” Flory says. This avoids the possibility of one spouse feeling undue pressure from the other spouse. “If it’s a deal-making decision, you want to know sooner rather than later,” she says.

That ship has set sail for us, but it’s still over a year away. There is plenty of time to get legal documents signed. But how do we bring it up? In between discussions about cutlery and flower arrangements, I said, “By the way, here’s how I’ll spend my money if this thing doesn’t work out.”

Megan McCoy, a financial therapist and Kansas State University professor, gave me two tips for structuring conversations.

Ideally, she says, a prenup should protect both parties financially, whether they have income, inheritance, business ownership, or significant debt. So this isn’t about money. Put that issue aside and focus on your marriage.

“We have to frame it like we’re being paid to stay in this relationship because we love each other, and it’s not about the money,” she says.

Another helpful exercise, McCoy says, is to cover potentially awkward or negative interactions within an overall positive context.

“We need to make sure we have these positive economic conversations as well as the essentials,” she says. She says a prenup can be part of a larger conversation, including dreams for your financial future, personal career and money goals, and family aspirations.

“Then you decide not only what’s mine and what’s yours, but also how you grow together,” she says.

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