Virtual Consultations Available

Answering Premarital Agreement Questions

Jennifer Hargrave and Jim Bohannan discussed pre-nuptial agreements on the Jim Bohannan Show recently, and they started off with a very famous example. 

When Britney Spears’ long-term boyfriend Sam Asghari was asked about prenups, he responded on Instagram, “Of course, we’re getting an ironclad prenup to protect my Jeep and shoe collection in case she dumps me one day”. His statement is a tongue-in-cheek acknowledgment of Ms. Spears’ estimated worth of  $60 million. 

Listen to the show or jump to a summary of the questions that were discussed in the summary below.

Are pre-nups iron-clad? 00:57

Jim asks that, as most marrying couples will not have that kind of money in the bank, are prenups just for the rich, and are they, as Mr. Asghari said, iron-clad?

Jennifer answers that in Texas, premarital agreements that meet all the formalities and satisfy the requirements of the law are presumed to be binding and enforceable. However, if it wasn’t done properly, or has things in it that are unenforceable or are against public policy, then a lawyer may look to set those terms aside. Also, although each state has its own laws, there is a body of uniform laws that are adopted from state to state and there are a lot of similarities. So, if you have a premarital agreement done in the state of Texas, a lot of other states will acknowledge that.  

Likewise, if you have a premarital agreement that’s done in the state of California or in New York, and you end up moving to Texas and you divorce or die there, then that prenup will be held to be enforceable. So done correctly, a premarital agreement is very powerful.  Otherwise, you give lawyers something to argue over and that could mean a lot more money for the lawyers.

How extreme do pre-marital stipulations get? 03:00

Jim wondered how unusual the clauses in prenups might get, giving an extreme hypothetical example of one that might say:  if my spouse cheats on me, I get to shoot them. 

Sure, Jennifer said, people come into the drafting of a premarital agreement with all kinds of ideas. One thing they will often try to cover is children. An agreement made about kids before you have them might give some idea of your intent regarding raising children, but it would not really be binding on the court or as part of a premarital agreement, at least where I practice. You need to consult with your lawyer.

An example might be when a couple has agreed that they are both going to work, but then they have children or maybe, they have a child with special needs, then one of them may have to stay home.  Obviously, that kind of thing is not going to be binding and enforceable, but I have certainly had a lot of calls where people have ideas about how they want to structure their marriage. 

Sometimes, after talking with them, they decide that maybe marriage really isn’t the best avenue. If you want to impose a lot of restrictions and demands on your spouse, that’s not the best foundation for a perfect marriage. So I think it’s important to have that conversation with somebody who’s going to be honest and direct and really give you good advice.

Are pre-marital agreements a new thing? 04.47

Jim says he has lived a good long life and but didn’t recall ever hearing about prenups until a few decades ago, usually in the context of Hollywood. Now they’ve become more mainstream but how new is the whole idea?

Jennifer agrees that oftentimes when we hear about prenups, it’s in the context of a celebrity situation, so it’s either coming out of California, or New York, but, she added, the concept goes back at least 50 years.

What is important for people to understand is that whether you have a premarital agreement, there’s a whole body of law, in whatever state you’re living, that is going to govern your marital relationship. Really, a premarital agreement is a way to custom-tailor that marriage relationship to say this is how we’re going to hold properties and this is what we want to happen in the event that we go our separate ways or either of us die.

The best of premarital agreements is really marriage-by-design. Negotiating your positions before you get married is a positive act for both parties. It will also result in a better understanding of what the law in your state says about holding property and what happens if your marriage dissolves. 

In many situations, Jennifer says she is in favor of premarital agreements, but in others, they’re just not necessary because the body of law already covers what’s going to happen.

Are pre-marital agreements a dose of reality? 06.42

Jim feels that the idea of a prenup was less than romantic but did see the discussion as a dose of reality given the high divorce rates. 

Jennifer agrees and points out that the process of getting a prenup educates the couple about the relevant laws in their state. 

Does being a divorce lawyer affect one’s relationships? 08.13

Jim asks Jennifer whether being a divorce lawyer had an adverse effect on budding relationships when she was dating. But, as she didn’t become a family lawyer until after she was married, Jennifer had no comment on that. However, Jennifer added, when you are a lawyer, people presume that you like to argue, but she really doesn’t.  What she really loves to do is find creative settlements and solutions to problems.

Would the desire to find solutions rather than litigate, cause a lawyer to lose business? 10:30

Jim finds Jennifer’s desire to find creative solutions to problems laudable but wonders if it leads to any loss of business? 

As a divorce attorney, Jennifer says it is her job to do what is in the best interest of her client.  Sometimes, that may lead to their reconciliation rather than continuing on to divorce. Whichever the outcome Jennifer feels it is her calling to help people accomplish their goals.

Is money a factor in marriage breakups? 11:01

Jennifer says that money issues in a marriage are really symptomatic of other issues, like a failure to be able to communicate, a failure to show up in the marriage and participate and have the hard conversations that you need to have. 

 Maybe you have one party who’s earning all the money, and the other who has set their career aside to take care of the kids. Both of them are working together towards the dynamics of their family but having those money conversations can be difficult.

What I would say is learn to have those hard conversations before you get married so that you’ve already set a framework and a foundation for being able to have those conversations.

And in some of the premarital agreements that I’ve negotiated with people where we have two really great attorneys and a couple who are willing to roll up their sleeves and do the hard work, we’re able to lay out a framework for them to have that conversation, to be able to talk through what happens when one of them takes time away from the workforce.

Do two-career families have more marital difficulties than those with one bread-winner? 13:01

Jim asks Jennifer whether two-career families tend to have a higher rate of marital difficulty than families in which one person provides the income and the other person stays home with household duties.

In her experience, Jennifer says that in a two-income household, you need to have a level of communication that is challenging for people who don’t know how to communicate well. You have to talk about schedules. You have to talk about hired help and to pay for the help. Even additional family members who are coming in to help while you’re working, need to be discussed. So, for people who can communicate, it’s not an obstacle, but there are others who continually have the same arguments.

A  lot of resentment can build up, especially when one party feels like they’re carrying all the weight. And it is hard to have a successful marriage when there’s a whole lot of resentment.

How many divorces revolve around sharing household duties? 14:20

Jim says that unless there was a new form of life crawling up the edge of the sink, he would tend to define his bathroom as clean, but he realizes that for some couples, a lackadaisical approach to household duties from one of the parties might lead to trouble.

Jennifer says that the interesting question is in how many households do husbands and wives sit down and talk about how many things need to get done in a day and how together they’re going to do them. What happens most of the time, she says, is that, by default, people just start doing the things that are important to them. The things that aren’t important get less done, but then because they’re doing everything that they think is important, they feel like there’s a huge imbalance.

Maybe the other party’s unloading the dishwasher every day, but when you come home, all you see are dishes in the sink. If you feel like, why am I the only one who’s ever loading the dishwasher? Because what you don’t see, is that it’s your partner that is unloading the dishwasher.

So, how do we help people be better in their marriage, Jennifer asks, adding, I know it sounds counter-intuitive to have a divorce lawyer talking about how to build stronger marriages, but cardiologists talk about how to avoid heart disease and oncologists talk about how to avoid cancer. So, she says, if she can do her part to share a little wisdom on the issues that people are dealing with day in and day out she’s happy to have that conversation.

Do the differences between men and women cause marital difficulties? 15:55

Jim wonders about how different standards between men and women might affect a marriage and Jennifer remembers the old saying that men are from Mars and women are from Venus. Men and women do see things differently, she agrees, and we should stop trying to convince each other otherwise. Instead, we should acknowledge and appreciate what each partner brings to the table.