Advice varies across the internet about to include in a marital agreement, whether a prenup or postnup. Some suggest including mundane details, even so far as including requirements for date nights and how housework will be divided.
Details About Daily Life Should Not Be in the Prenup or Postnup
After practicing family law since 1992 and writing hundreds of marital agreements, I advise a prenup or postnup include only provisions about what happens when a spouse dies or the marriage is dissolved. It is a legal document about the end of a marriage, whether by divorce or death. A marital agreement can affirm a spouse’s right to manage his or her separate property without consulting the other. If a spouse wants details about day-to-day life written down, those can be in a separate, unenforceable, memorandum.
A Good Marital Agreement Need Rarely Be Consulted
A good prenup or postnup can be put away and never consulted until needed. It can designate community and separate property; the percentage ownership of joint purchases and joint financial accounts; taxes; and property management.
Include Only Property & Financial Obligations
When thinking about what to include, ask whether it affects either spouse’s property and is enforceable. For example, designating each spouse’s retirement as the separate property of the spouse who earned it affects property and is enforceable in a divorce or in probate court when a spouse dies. Requiring two date nights per month is not. No damages will be awarded for missed dates. Even if the agreement includes liquidated damages for each missed date, i.e., a specific amount to be paid by the spouse who misses the date, it invites litigation to prove the number of missed dates and who’s at fault.
Too Many Details Encourage Litigation
A goal of all marital agreements is to minimize litigation. Including a requirement to walk the dog, even with specified damages, encourages litigation when the spouses disagree about whether the dog was walked and why. The same applies to most mundane details of marriage.
Failure to agree about how to be married might be a basis to end the marriage, and the prenup or postnup then comes into effect. The signed agreement should not include those details.
Adultery Clauses in A Prenup or Postnup Defy Definition & Encourage Litigation
I caution against including adultery clauses and other terms about fault when a marriage ends. First, they encourage litigation because a spouse benefits by convincing the judge or jury the other was adulterous. The benefit could be substantial, justifying the cost and stress of prolonged litigation. Second, adultery is difficult to define. Court cases define it as sexual intercourse. It’s impossible to write a definition suitable for the internet age. A marriage might not survive the hurt and breach of trust when a spouse sends intimate photos, or engages in inappropriate chat, with someone thousands of miles away, but that conduct meets no traditional definition of adultery. This is one example. New social media sites regularly spring up with new ways to be unfaithful. No definition can include or foresee them all.
People disagree about what’s “appropriate” so allocating more assets to a spouse if the other engages in “inappropriate sexual communication” invites litigation. One spouse might find a comment on Facebook to be within the definition, while the other could see it as merely a joke and not a “sexual communication.”
Domestic Violence Provisions in a Prenup or Postnup
Domestic violence is easier to define but also encourages litigation and nefarious conduct if a marriage is in trouble. For example, one spouse getting arrested for domestic violence might financially benefit the other. Most allegations of domestic violence are swearing matches. If one is arrested, the other will find it easier to convince a judge their version is the truth and, therefore, have an incentive to cause the other’s arrest.
Including ‘Fault’ in a Prenup or Postnup
If you wish to include fault provisions, prepare to spend time and expense because there’s no standard language, definition or template to plug into the document. There might be many drafts and communications between parties and lawyers before agreeing on appropriate language. Writing it yourself will not save much. Most lawyers will not include language written by the parties because the lawyer is responsible for the document and is being paid for expertise, not to be a scribe. Spouses or fiancés writing down an agreed definition can help because the parties have refined their thoughts, but do not expect a lawyer to use it without revision or, at least, serious discussion.
Limit the Agreement to Property Ownership & Financial Obligations
In a prenup or postnup, it’s best to include the parameters of property ownership so you know who owns what when a spouse dies or in the unfortunate event of divorce. Life’s details and each spouse’s needs and expectations change. By the time a marital agreement is put into effect the specified details about marriage might seem quaint and outdated. If spouses or prospective spouses want them written down, a memo separate from the legal agreement is best.
A prenup or postnup should address businesses; investments; retirement; real estate; financial accounts; titled vehicles like cars, trucks, and boats; taxes; valuable personal items like art and antiques; future transactions involving both spouses; gifts and loans between spouses; and debts. The agreement can provide there will be no community property or designate categories as community. It can specify how property acquired in both names during marriage will be treated, and ownership of joint financial accounts. It can require payment of funds from one spouse to the other periodically, or upon certain milestones. That affects property and is enforceable. Unpaid amounts can be recovered in divorce or at probate.
Put the Marital Agreement Away Until it’s Needed
Ultimately, the prenuptial or postnuptial agreement should be one that can be put away and rarely consulted until the unfortunate day it’s necessary, whether in divorce or death of a spouse.
Wondering how much detail should be in a prenup or postnup?
If you are about to sign or create a prenup or postnup, contact us. We can help you determine how much detail should be in your prenup or postnup and avoid unnecessary litigation down the road.
