A premarital agreement, of course, requires the consent of both future spouses. Sometimes future spouses will disagree about whether to sign a premarital agreement. The last post in this series considered this situation by addressing the spouse who wants an agreement. This post will consider the situation by addressing the spouse who does not want the agreement.
Understand initially that this is very serious issue that will affect your life forever. The decisions you make regarding this agreement will play a very important role, possibly even a critical role, in determining your financial future.
Many future spouses, especially women, when confronted with a strong request for a premarital agreement, have swallowed their reservations and signed it. Years later they discover that the effect of the agreement is to allow their spouse to leave the marriage at any time, leaving them with no property and no spousal support. Few decisions have been regretted as intensely as the decision to sign a substantively unfair premarital agreement.
Your financial future is your responsibility. You are not required to sign any premarital agreement. While many couples have such agreements, many couples also do not. You have the power to accept the famous advice of former First Lady Nancy Reagan: “Just Say No.”
You should also recognize that decisions regarding this agreement are too important to be made without assistance. You need to know what your rights would be without the agreement. You need to know the value of your future spouse’s property. You need to know what the agreement says. Do not lightly assume you know that; a trained lawyer can include provisions that seem meaningful, but are actually worth nothing. An agreement to agree, for example, is not legally enforceable. You need the advice of an attorney to guide you in making decisions about the agreement.
“But if I don’t sign the agreement,” you may be thinking, “my future spouse won’t marry me!” It may seem so when you are in love, but marrying this particular person is not the central question in the universe. Many future spouses have said, “I must marry this person!” and signed an unfair agreement that they later deeply regretted.
If your future spouse is insisting that you must give up all future financial security as a condition of the marriage, you need to consider very carefully whether you really want to marry this person. Divorce rates are close to 50%. It is very foreseeable that your marriage will not last forever. You are responsible for your own financial future.
While signing an unfair agreement can be a complete financial disaster, it is also important not to assume blindly that the agreement is unfair. There are valid reasons why future spouses want premarital agreements. Try to find out why your future spouse wants one.
Then consider whether your future spouse’s needs can be met without unreasonably sacrificing your future financial security. For instance, you and your spouse both are employed; you may be able to provide for your own future security. If your spouse is wealthy, the agreement may give you a reasonable financial future even if you are not getting 50% of everything.
Be aware of the issue of children. Discuss this issue with your spouse. If you do not intend to have children, be aware of the possibility that your views on this question might change as you get older. If you intend to stay home with any children you have, be aware that however good that decision may be for children, it will limit your future earnings. The law gives you rights to property division and alimony that are intended, in material part, as compensation for the time spent out of the workplace raising children. Consider carefully whether you want to give up these rights.
The bottom line is: There are good reasons why the law requires property division when a marriage ends in death or divorce, and support when a marriage ends in divorce. Be careful before signing a complete waiver of these rights. It may be a decision you will ultimately regret.