All About That Prenup
Show Notes
With thousands of prenuptial agreements being negotiated everyday you would imagine that there would be less of a stigma for modern day couples when discussing whether or not to have one. With no guarantees that having a prenup will result in a divorce, or create a lasting marriage, what drives us to continue having this polarizing conversation?
In this episode we cover:
What are Prenuptial Agreements?
Who are Prenups for?
The stigma surrounding prenups
Enforcing the rules of the Prenup
Transcript
Isaiah Vallejo-Juste (00:00):
The fact that a prenup has been requested doesn't mean that the love has gone away. It just means that that person has something that they probably want to protect.
[Theme Music]
Meredith Shirey (00:20):
I'm Meredith Shirey, I'm a licensed psychotherapist specializing in relationship issues.
Isaiah Vallejo-Juste (00:24):
And I'm Isaiah Vallejo-Juste a divorce attorney,
Meredith Shirey (00:28):
This is a podcast about, about filling in the gaps of our relationships, the deeply personal choices we make for our families and ourselves,
Isaiah Vallejo-Juste (00:34):
And the impact that our actions have on the rest of our lives. This is Love Me or Leave Me.
Meredith Shirey (00:44):
Hey everyone. Welcome back on a previous episode, we introduced everyone to the concept of prenuptial agreements, but we realized that we didn't have enough time to really go through it and give it the credit it should for it's such a complicated topic. And Isaiah and I even prepping for this episode, I had no idea how complex and nuanced prenuptial relationships are. And so we thought it'd be really helpful to give you some information about that in case you're considering a prenuptial agreement.
Isaiah Vallejo-Juste (01:16):
Prenuptial agreement, you know, I guess the first question you would ask yourself is, well, what is a prenuptial agreement? So we can break that down kind of really quickly, nuptials obviously refer to your wedding, pre: before. So it's an agreement that you enter into before your marriage, which will govern, how would the divorce would go when it comes to the finances.
Meredith Shirey (01:37):
That prenups really only apply to financial aspects or to assets, does it apply to any other area of marriage?
Isaiah Vallejo-Juste (01:45):
Generally speaking, they are just really dealing with finances. Uh, it's against public policy, for example, to deal with children or child support, things of that nature. So really you're talking about what assets you have or are you going to be earning during the marriage itself?
Meredith Shirey (01:59):
Are there any trends, people maybe who are more likely to get a prenup, people who would benefit from those things?
Isaiah Vallejo-Juste (02:05):
Usually you'll see somebody getting a prenup because you know, they either have a business or some assets that they want to protect. Maybe some family money, maybe their family wants somebody to get a prenup, to protect the money they're going to inherit or have otherwise received already from their families. So that's usually what you will see. Sometimes you'll see none of that. And just people believing that prenups deal with things equitably when they want to have things very equitable in their marriage. And so they'll use a prenup for that reason.
Meredith Shirey (02:35):
Now with a younger millennial generation where you have a much stronger female presence in the workforce, are you noticing any differences there? Are millennials more or less likely to get a prenup?
Isaiah Vallejo-Juste (02:45):
There are a lot of millennial prenups going around. That's definitely a trend. So I definitely, I've definitely, I've seen that. I think you could say that millennials tend to have more prenups than in previous generations. And I think there's just a more of like, it's more socially acceptable. Now, a lot of millennials are children of divorce and having seen how the divorce has worked out amongst their parents may want a prenup for that reason as well.
Meredith Shirey (03:06):
I love the idea of a prenup because to me, I think of it as almost like an insurance, right? You don't sign up for short or long-term disability through your job or health care insurance, because you want to have that. But because you want to protect yourself in the event that you need it. I think for a lot of people though, they get really scared of the concept of bringing up a prenuptial agreement because they're afraid is going to become very adversarial.
Isaiah Vallejo-Juste (03:31):
Yeah, absolutely. I get that question all the time. How should I let him or her know that I want a prenup? And people are very concerned about that because although the stigma is lessening, there's certainly a stigma out there with respect to getting prenups or people have conceptions about what getting a prenup means. Does that mean that you're planning for our divorce? What does that mean about what you think of our relationship and things of that manner. So, yeah, absolutely. I see it a lot.
Meredith Shirey (03:56):
What's helpful for people to know, or for you to tell them when it comes to lessening the stigma for normalizing getting a prenup.
Isaiah Vallejo-Juste (04:03):
I think what you said, summarizes the best, and I've never heard somebody say the word love and prenup kind of together. Like, I love the idea of a prenup, and it being a type of insurance, that's a great way to look at it. It's like an insurance policy, you know, and for that reason, you got to make sure it's properly drawn up and things are done properly so that you know, that it's enforceable later. But yeah, absolutely. That's what I would say is the best way.
Meredith Shirey (04:24):
So if I can give this anecdotal example, um, I had clients one time who ended up in my office because they're getting a prenup and it was a lot of the, do you not trust me? Do you really think that I would do this to you? Are we really preparing for a divorce? Um, but really what it was was the partner who had the assets and who was pushing for the prenup, had been through a very short marriage before, and also had a parent who is very absent in and out and also abusing the family and trying to financially take advantage of them. And so for that person, finances and having the security of those assets was more about saying to the partner. I want to know that you respect my need for security here. And once she understood that she was fine with it and they could move on and happily ever after, but it took getting through all of that content to actually get to that vulnerable need that they both have.
Isaiah Vallejo-Juste (05:16):
Cause I think one of the big problems that happened is one of miscommunication. When you deal with prenups, you have four people communicating with each other and they don't necessarily all communicate the same way in the same manner. Or they don't necessarily agree about what's being communicated. You have both parties and then you have the attorneys on kind of on both sides. So really what I think is instructive is for the, you know, the parties themselves, the couple to have had discussions about why they want to meet up what it is they want to protect in the prenup and how they want to do that. So that when they go to their attorneys, they can say, well, this is what we want to do. This is how we want to drawn up and they can stick as close to that as possible. But there's just so many different that you can consider in a prenup that sometimes that communication can get lost in the sauce a little bit, and that can make things kind of contentious.
Isaiah Vallejo-Juste (06:05):
Whereas one side is saying, well, you know, the prenup says this and the other side is saying, well, no, the prenup really says this and that's a point that can really generate some real conflict. And then on top of that, you have like upcoming wedding dates and you have, you picked your wedding dress. So you pick your tuxedo and just the stress of getting married as stressful. So add in so that the stress of negotiating a document that feels like you're negotiating your divorce and just can really make it very contentious on what you want to try and do, at least what I try to do is I try to keep it a little more, even keel and try to just work through the issues together so that, you know, the couple can focus on getting married and having fun and enjoying themselves and let the attorneys kind of do the work of making sure that they've protected their clients and accomplish the goals that they want.
Meredith Shirey (06:51):
From your perspective. It sounds like you see the role of the attorneys is to really try to clarify those details, but to also do your best, as much as you can to preserve the couple in terms of not turning them against one another, if you can, does it make a difference? What kind of attorney you go to for this? It sounds like this is a pretty complicated, dense document that you really need someone who understands us to help you.
Isaiah Vallejo-Juste (07:13):
You definitely want somebody who has substantial work in both drafting, prenups, and then handling divorces does, then that person has seen what the results of a prenup can actually look like. So you don't want somebody who just doesn't do that because in my opinion, any way you want somebody who's going to know, right. Well, if we put these provisions in an agreement, this is what the court is going to do with those provisions. But this is what it actually means in reality, because prenups, at least in the state of New York, our documents with the courts, very much respect and very much in force. And so you don't want any unintended consequences and your prenup. So for example, you could say, my business is going to be separate property. That's a common one. And at the income that I received from separate property is going to be remain separate property.
Isaiah Vallejo-Juste (07:55):
And then there's usually other terms in the prenuptial agreements, whereby they say, well, anything you purchased with your separate property. It remains a separate property. So now you've set up a situation where you have no income outside of your separate property and anything you purchased with your separate property income, which is from your business, likewise is a separate property. So you may have basically just purchased every single thing as your separate property, like the TV purchase as your separate property, the painting you purchase, that's a separate property, but maybe you didn't intend that maybe your fiance didn't understand that. So really what you want to make sure is that both parties understand what they're signing and agree to that.
Meredith Shirey (08:33):
So especially with so many startups and people have more of an entrepreneurial spirit, I'm sure that that's something that has to be taken to account. So if I was getting married and I came to your office and I said, Isaiah, I built my therapy practice before I met this person, my only source of income, I want to make sure that I'm protecting my business and my income, but I also want to be fair. So if we both have jobs and there's a separate property, but I assume we both have bought things for the house and that kind of thing, like I would never want it to be so uneven or that this somehow again, work to my disproportionate advantage in some way. So how can you find a way to make that more even.
Isaiah Vallejo-Juste (09:11):
Well, fair like beauty is in the eye of the beholder. So it depends upon what it is that you want to accomplish. I'm not here to say that you should do this one way or you should do this another way. I'm here to say, these are what your options are and how do you want to take this? What is it that you want to do? What is it that you're trying to protect? What do you not want to pretend to not want it so that all the income you earn in your marriage is your separate property, if you don't want that, then we can speak about that. If you do want that, then we can accomplish that. Well, it all depends upon what it is that you want and what it is that you have Beyonce wants as well.
Meredith Shirey (09:44):
I'm actually gonna really care about making sure that my fiance, again, my imaginary man over here gets equal treatment. That I'm not, you know, that I'm trying to kind of pull one over on him. Whereas if you wait until the divorce, no, one's gonna be thinking about that. They're in it for themselves because you're not a good place. And you're not exactly looking to throw the other person, a bone, if you're, if you're in the divorce.
Isaiah Vallejo-Juste (10:06):
I mean, and that's exactly why these agreements have to be so carefully drawn up because I always like to compare it to a well, when you're dealing with a will in the event that the rule is enforced, that means your spouse died. But then also means that usually speaking more or less, the relationship has gone the way you thought, right, you were married until the end. And so now you got everything that you're entitled to one little will. And this is a sad event that the spouse has died, but it's not necessarily a sad event in that the relationship has terminated in a way that it was negative or that you did not expect, which is the case in the divorce was a prenup. It's the opposite of that. Now you're protecting yourself against somebody who loves at the time was becoming adversarial. And so that's why it's really important that these things are drawn up in advance.
Isaiah Vallejo-Juste (10:54):
And with a lot of forethought, now it's a different mindset. What are we going to do in the event that we get divorced? And that question is heavy the way you think you'll act. And the divorce is not the way you're going to act in the divorce. It's just, isn't because you're not under that type of stress. And can't possibly be foresee what it was like to let's say, live with a person to be married to them for a number of years, maybe you're going to start a family and then have that person either do something, or you've done something to that person that causes of divorce. You can't possibly foresee how you're going to react, let alone how your spouse is going to react and not in high tense situation. So in that way, prenups can act to provide some certainty as to what's going to happen. Now with that said, prenups provide certainty with what's going to happen. So the same way on the positive side to protect yourself. Well maybe on the negative side, you are giving something that you wouldn't want to give in the event that you actually don't see, really have to give these things a lot of thoughts.
Meredith Shirey (11:54):
Yeah. This sounds like a cautionary tale.
Isaiah Vallejo-Juste (11:56):
A little bit. I mean, you see, you see both sides of that coin all the time. Really what you want to think about is in the worst possible case scenario, this thing was forced, am I okay with the terms of this agreement? Do I understand them? Have I gotten a financial exposure, do I understand what the other person has? And at the end of the day am I ok with this it's value judgment that you placing. And in my opinion, there's no really right. A long way to say, Oh yes, this is why, yes, this is wrong. It's really up to you.
Meredith Shirey (12:24):
Well, I guess in terms of these marital agreements, so I've heard of a postnup, but I don't really know what it is. What, what is it? And what's the difference between that and a prenup.
Isaiah Vallejo-Juste (12:32):
Whereas prenuptial is before you get married, post-nuptial is after you get married, you can enter into a postnuptial agreement about any of the financial issues in your marriage. If you'd like, similar to the way you can do that with a, with a prenup, but they're two very, very different documents. When it comes to prenups, the courts have held that you don't have the fiduciary duty to your fiancee, but when it comes to postnups, the court has held that you have a fiduciary duty to your spouse. Now there's been some push back a little bit in the case law about prenups and having fiduciary duties. But for the most part, that's the case.
Meredith Shirey (13:05):
What does fiduciary mean?
Isaiah Vallejo-Juste (13:07):
You have a responsibility towards your spouse to do right by them.
Meredith Shirey (13:14):
Oh okay, so like to be fair.
Isaiah Vallejo-Juste (13:15):
Yes, exactly. Postnups have more stringent standard that has to be upheld. So if you've given something away in a postnup, then you tend to be probably should get something back for that. Whereas in a prenup, there's really not that strict of a requirement, prenups are really going to require that they be conscionable, meaning that they're not extreme. They don't cause extreme financial hardship on somebody or something along those lines. But for the most part, New York is really going to enforce prenups. Postnups a little harder. So you have to be careful.
Meredith Shirey (13:44):
Can you just talk a little bit more about that? So people understand, okay. What would be one of these circumstances that would constitute this being thrown out or having to be renegotiated?
Isaiah Vallejo-Juste (13:54):
Sure. Let's say it's signed in properly is one. It has to be signed in a specific way before a notary does an acknowledgement, and attorney representing both sides can be a part of a basis to overturn a prenup, but it doesn't mean that's automatic things like duress, putting extreme, extreme, extreme pressure on a person which the courts have held does not mean that your wedding date is tomorrow because the courts have held that you don't have to get married. You can enter into a prenup the day before and you can't later say there's been duress. So it has to be something rather extreme. You know, another one is, you know, mental incompetency or something like that as well. But these things are extreme things. So really it's not the things that you're going to see on a day-to-day basis when it comes to a prenup. So you want to make sure that you know what you're answering. And so, because you know, there's a pretty high likelihood that it's going to be enforced.
Meredith Shirey (14:44):
This has been incredibly helpful. All of this information. Is there anything else you think that we should know about prenups before wrap up?
Isaiah Vallejo-Juste (14:52):
Yeah, I would say that look a prenup is not the end of the world. There are thousands of prenups that get negotiated every single day. And it doesn't mean necessarily that you're going to get divorced. And it doesn't mean that you're going to stay married, but the rest of your life, let's be honest. We live in the 21st century nowadays. And the worst rate is somewhere around 50%. I wouldn't say that, Hey, got into a prenup and that means I'm automatically getting divorced. You're getting married at the end of the day. You might get the voice, these things happen. Okay. So I wouldn't look at it nor up somebody requesting a prenup as being the worst thing in the world. You know what? You have to be as honest and honest in your communications as to why you want the prenup. And you'll be surprised that more often than not, when that honesty happens and when those honest discussions occur at that point, the other side usually gets it, like your clients. Because at the end of the day, remember, the person asked me for the prenup, asked you to marry him or her or the reverse happened at the end of the day. And you guys have agreed to marry each other. So obviously there should be some love there. The fact that a prenup has been requested doesn't mean that the love has gone away. It just means that that person has something that they probably want to protect. So just have a conversation about it. It's not the worst thing.
Meredith Shirey (16:02):
I love that. I think that that's so important, right? It's it doesn't diminish or negate love or trust, but it's usually saying I need to protect me. Not that I don't trust you, but I need this for me. If you think about it like you time or when you're taking time for yourself, because this is obviously in the age of COVID something, every couples had to negotiate. You know, when you're taking time for yourself, your me time, you're not leaving your spouse, right? It's not because you need time away for your spouse. You just need time to recharge yourself. It's not that I want to hurt you or withhold from you or that I don't trust you. It's just that I have a need to protect me. And if I'm going to ask you for that, I need to be really honest and vulnerable about what that is so that you don't feel like it's because I don't trust you.
Isaiah Vallejo-Juste (16:48):
I think that's the perfect way to put that one. What's that I think, you know, this is a good place to end this episode. And next week, you know, we have a great guest coming on and for prenups, we're going to talk about sex. We have Melissa Pennica coming on. She's a licensed marriage family therapist, and she's going to talk to us about sex and relationships. So we'll see you next time.
Rich Hackman [Producer] (17:17):
Love Me, or Leave Me is a podcast production of the Bored Brand. This podcast is for informational purposes only. It does not constitute medical or legal advice and is not a substitute for professional consultation, diagnosis or treatment. Always follow up with a licensed attorney or healthcare professional who can address your specific needs. Thanks for listening.
