The Smart Divorce® Weblog

The Crafting of Prenuptial and Co-habitation

Agreements and the Conversations You Need to Have

Everyday there seems to be another issue of divorce highlighted by the media.  One of the biggest areas of concern appears to be prenuptial/co-habitation agreements as celebrities seem to contest these all the time.  However, prenuptial/co-habitation agreements are not just for the wealthy or the famous.  The purpose for drafting them and the conversations which need to take place to craft them are critical.

I am currently researching a book entitled Get It Right This Time and Move On: The Conversation You Need to Have. This is a revolutionary book covering the number of issues facing people going through not only another divorce, but offers ways to assess another significant relationship.  It also guides people on their way to a smart relationship the next time, and moving on with the rest of their lives intact.  While researching this book, I found that there seems to be a clear consensus on the importance of prenuptial/co-habitation and cohabitation agreements which need to be included in the mix.

Both type of agreements – prenuptial and cohabitation – are on the rise.  Despite this increase, many family law lawyers feel that not enough of their clients are requesting these agreements. On the client side, there needs to be greater education about what these agreements are for. Furthermore, people are afraid to discuss their thoughts behind these agreements with a potential partner as a result of potential conflict and/or undermining their relationship.

Here are some considerations when thinking about the purpose of prenuptial and cohabitation agreements:

- People are less casual about the concept of prenuptial/ co-habitation and there is less stigma attached to them as in previous generations.  They are becoming far more acceptable.  The purpose is to protect assets in the event of divorce or death.  Interesting, many people don’t think about how an untimely passing could factor into the mix.

- People are afraid to talk about prenuptial/ co-habitation with their partner as they think the issues/financials they want to discuss are going to affect the relationship.  The truth is, if you can’t have these serious conversations, then perhaps the relationship wouldn’t make it in the long term.

- The prenuptial/co-habitation agreement is an excellent opportunity to evaluate short, medium and long term expectations of the relationship, help you think about the important factors in the relationship and forces you to discuss finances – which many couples do not want to consider.

- As one lawyer I spoke to said - when it comes to physical intimacy, people have no issue talking about their wants and needs.  But, when it‘s time to discuss the real issues of a relationship and what is important to a couple financially, people want to avoid these conversations until it is too late.  They are afraid that discussing their philosophy on finances is going to unravel the relationship.

- You can look at prenuptial/co-habitation agreement as divorce insurance.  For example, you have car insurance, hoping that you never need it, but if you are in an accident….well thank goodness you’ve got the protection.

- Many very wealthy families are preparing “family prenuptial/co-habitation/co-habitation” (for every new partner to sign) to protect family assets, business and so on.

- The divorce rate rises with each subsequent marriage.  For instance, with second time marriage the likelihood of divorce is 60%. As you have older couples getting married there are other factors to consider that a young couple don’t worry about – children.  It is obvious that people want to protect much of the wealth accumulated outside of the new marriage for their children.

- A Prenuptial/co-habitation agreement for older couples has a different meaning than for younger couples who are just starting out.  The younger couple in many instances has less financially to be concerned about.

- Middle income families are beginning to get prenuptial/co-habitation agreements so as not to offend the children; as the children want to ensure that the family heirlooms stay in the family and are not lost in the event of a divorce.  This way, you can protect grandma’s sterling place settings, sentimental family items and so on.

- Much of the same conversation as to how finances are going to be managed long, medium and short term can be addressed by a co-habitation agreement.

Prenuptial co-habitation agreements are an excellent way to protect assets in the event of separation/divorce. However, the important conversations a couple needs to have when agreeing to craft the agreement could actually go a long way to ensuring they are on the same page and hopefully avoid the all out war, which too often results.