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Premarital Agreements As Tools for Divorce Prevention

Jan. 16, 2020

I can’t tell you how many times I have been at the filing window at court only to hear a pro per litigant (legalese for self-represented) say something to the effect “It was so easy to get married, but getting divorced is so hard and is taking years!”

Divorce in California seems to be one of the only “long-term contracts” where the parties only learn what they signed up for when they try to end the contract. The law imposes significant “agreements” be default and most people getting married have no idea what they are signing up for. While one could argue that the law in California imposes requirements and obligations that no one wants, there is a case to be made that the primary problem is not the law but the fact that people getting married rarely ask the right questions before marriage and as a result become resentful, surprised, and hurt during the marriage because their expectations don’t match those of their spouse.

People getting married generally believe that their marriage is built to last and “weather the storm.” However, many of the trials, tribulations, and even great successes that married people will experience completely inconceivable at the time the parties are entering into their union. Neither spouse generally anticipates losing a job, having to move for a job, losing a child, either spouse having serious health problems, or even inheriting large amounts of property, money or even debt, or massive changes in income. When these changes do happen, they may have expectations or beliefs about how the other spouse might react. Rarely do spouses adequately anticipate how the either spouse might react unless they actually talk about it.

Many people believe that a pre-marital agreement is just “planning for divorce.” Often, a person about to get married is afraid to raise the idea for fear of offending the other person. This is sort of like refusing to discuss birth control - if you are unwilling to have difficult but necessary conversations, you are probably doing something you shouldn’t be.

In the same way there is not a one-size-fits-all marriage, there are a wide range of pre-marital agreements. Moreover, having a discussion with an attorney in advance of marriage about what might go in a pre-marital agreement does not mean that you have to actually create or sign a pre- marital agreement. The discussion is valuable on its own for the purpose of discussing the types of issues that arise in family law cases and to learn about your soon-to-be spouses beliefs and feeling about the issues. Opening yourselves to having discussions about finances, kids, and other potential changes in your family before they happen is the best way to prevent each other from making incorrect assumptions and resenting each other when you have unmet expectations. Just like birth control, can you really say your ready for marriage if you can’t even discuss these issues?