Premarital Agreements – You Know You Are Curious

For years, I wrote premarital agreements and even enjoyed drafting them. Conceptually, they are very interesting because they are an opportunity to re-write California Family Law and dramatically negotiate and shift away from being a community property (50/50) state. In fact, I learned some skills in drafting these agreements from what I consider to be some of the best attorneys in the State of California through participation in various continuing legal education courses. However, I must say, premarital agreements are not really starting a marriage off in a positive direction.

The purpose of a premarital agreement is a “divorce up front,” no getting around it. One party wants to make certain that his or her assets brought into the marriage are “protected” from the other party should they decide to divorce down the road. While it is true that people should always err on the side of caution, what are you really doing, psychologically, to yourself and your future spouse by starting off your marriage with, essentially, a divorce? A person is basically saying to the other person “I want to share everything with you except for [ fill in the blank].” A marriage is supposed to be a partnership, but if one partner is not willing to share then what kind of a partnership is it? Further, I see a lot of young entrepreneurs executing premarital agreements – of course, they want to have children right away. So, from the perspective of 30,000 feet, they trust each other with children but not with their assets? This does not make sense and seems infinitely flawed and selfish.

We hear stars and artists talk about their premarital agreements and wax poetic about their necessity, but, maybe they need to spend a little less time focusing on protecting their assets and a little more time properly selecting their mates? This may require too much effort and thought, but it seems to me to be a lot less effort and thought than drafting a premarital agreement and certainly a lot less effort and thought than a divorce. People do change, this is true, but certain personality types may not be who you should marry and certainly not who you should have children with; for example, and some of the personality types I see often in divorce situations, people who struggle with addiction, are fiscally irresponsible, or engage in domestic violence type of behavior while dating. I often see couples with large age gaps desiring premarital agreements – often times, the younger party wants the premarital agreement to “show” the children of the other party that his or her commitment is solid. I am very skeptical of these types of situations – for one, is it really the business of the child to “watch over” who the parent marries and what the parent does with his or her hard earned assets?

For those people who have done their homework on their potential spouse and still, despite the unsavory notion of being a divorce up front, desire a premarital agreement then be prepared to spend at least $5000-$10,000, each, on an attorney for purposes of drafting and negotiating a premarital agreement. Think about it, if a divorce can cost anywhere from $5000-$100,000+ then why should a premarital agreement (or “divorce up front”) cost any less? I can think of an outstanding law firm on the West side of Los Angeles County that charges $25,000 just to start a premarital agreement. Attorneys who offer cheap premarital agreements or do not hold themselves out as specializing in premarital agreements are like cheap plastic surgery – the results are probably not going to be very good. My favorite are people who have paralegals draft their premarital agreements for $500…etc. or their good friend so-and-so who is a Criminal attorney, or whatever, and drafted one up lickety split for free. Re-writing California law takes time and certainly cannot be done through a form or a template; and, most certainly, not for a few hundred dollars.

There are very specific disclosure requirements involved with drafting and negotiating a premarital agreement. There are also very specific time frames involved with drafting and signing a premarital agreement – for example, some attorneys will not take premarital agreement clients when a wedding date has been set. The reason why is that one party may feel forced to sign it because a date has been set and, years down the road, the agreement may not be enforceable because it was signed under “duress” or “undue influence.”

I was recently at an attorney networking event and a young attorney and I were talking about our personal lives…etc. He asked me generally about my thoughts on premarital agreements which I shared with him without hesitation, as I do often, and I noticed the more I disparaged them the more relief that came across his face. He then shared with me that he was recently engaged to the woman of his dreams and his friends were pressuring him to “sign a premarital agreement.” He did not want to – if you do your homework on your spouse and you are not an 80 year old man marrying an 18 year old then you probably find the concept unsavory. The bottom line on premarital agreements is to approach them carefully and rationally, well in advance of setting a wedding date, and know that they do not necessarily have to be automatic. Finally, be prepared to retain well-known, respected experts in the negotiation and drafting of premarital agreements and at a sizeable cost for both parties.