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Love and Marriage (and Prenuptial Agreements) Go Together Like a Horse and Carriage

The following is a somewhat typical of the responses a lawyer would hear if he suggested to his/her soon-to-be married client that a prenuptial agreement might be a good idea, when I was a new practicing attorney and prenuptial agreements were recognized by the Virginia legislature as viable contracts:

What is wrong with you for including “pre-nups” in the same phrase with “love and marriage?” My parents have been married 30 years and never even considered such a thing!!! If two people are really in love and want to marry, a prenuptial agreement is not necessary, but is a slap in the face!! Love and marriage are forever!! Marriage is not about money; it’s about love, devotion, and commitment to another person for the rest of your lives!! You’re just another money-hungry lawyer-shark trying to screw-up people’s lives!! I would never EVER marry anyone who asked me to sign a prenuptial agreement!! I thought you were my friend – you’re fired, and I hope you burn in Hell!!!

Does the phrase, “Don’t kill the messenger [because he’s brought bad news]” ring a bell to anyone out there? When a man and a woman fall in love and decide to marry one another, neither believes or even conceives of the probability – yes, I said “probability,” not “possibility” – that one will not be present at the other’s deathbed. That part of the wedding vow, “’til death do you part,” in today’s society means little, and divorce no longer carries the stigma of failure that existed just two generations past, in social or standing or in the business world. The frequency of failed marriages has even resulted in the limited acceptance of divorce among most churches. While marriage is referred to as “holy matrimony,” the reality is that marriage has for several centuries existed in two worlds: the religious world, and the secular, or legal, world.

The law views marriage as a special kind of contract between two people. When a smart and successful businessman enters into a “big contract” he knows to automatically seek the advice of a lawyer to protect himself for the possibility that something will go wrong and the contract broken. Today, a lawyer who has a client about to be married who does not mention to the client that he or she consider making a prenuptial agreement with his or her intended is dropping the ball. Almost one-half of all marriages end in divorce. A person’s soul, essence in the after-life, or denial to heaven may be affected if he or she breaks the marriage vow, but the law has the final word as to how the couple’s property and wealth – the secular or “worldly” aspect -- and the obligations of one to the other, is determined.

In Virginia, the law defines what is the separate property of each spouse, and what is marital property belonging in part to both spouses. Marital property is subject to equitable distribution, an evidential process whereby the court decides how the marital property will be divided. Of course, the courts do not have to do this if the parties themselves reach a written agreement – another contract – dividing the property between them. However, this can be complicated when relations are strained or tense between the two, each feels pressure to “get it over with,” and the process does not always result in a fair distribution.

However, a prenuptial agreement can eliminate many problems such as these, and thus make the divorce process less stressful and acrimonious. The parties can take their time and give weighty consideration to each factor. The prenuptial agreement can encompass many things, or just a few, depending on what the parties themselves want. It is not something just for the wealthy either, but it benefits all who marry. It is certainly should be considered, so don’t yell at your attorney if he suggests it.

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