A Prenuptial Agreement is a written contract between parties who intend to marry. Primarily, it seeks to govern what will be the disposition of their various assets in the event of a divorce. It can also include whether or not spousal maintenance will be paid or whether lump sum cash settlements will be made if a divorce occurs.
The issue often not spoken about in discussions around a Prenuptial Agreement is the inherent conflict that is the nature of such an agreement. Most couples move toward marriage with the hope and faith that they will be lifetime partners. Certainly at the outset it is difficult to consider the possibility of divorce. Such a possibility can tend to inject doubt and other undesirable thoughts into the otherwise happy prospect of marriage; so people may void such discussions and can veer away from a Prenuptial Agreement when its use might be helpful in clarifying ambiguous and unspoken issues that may later arise. So why even consider a Prenuptial Agreement?
The wisest use of a Prenuptial Agreement occurs in the case of marriages later in life when substantial assets (or obligations) may already exist. The wish to preserve such assets or take responsibility for obligations that had nothing to do with the marriage partner drives the need for a Prenuptial Agreement. Couples who marry later in life often have their own children, and they may wish to preserve their assets for these children rather than have them go to the new marriage partner.
In cases where marrying parties find they are conflicted about a Prenuptial Agreement because of the uncertainties of a long-term marriage, yet also want to enter the marriage with hope and goodwill, a set of graduated entitlements may be built into the agreement. For example, if the parties are married for more than 3 years, then certain things might occur. This may change if the marriage is intact for an additional 5 years, and so on. This gives the parties assurance that as the marriage endures and becomes more stable they can rely to a greater extent on remaining married and relax into a full financial partnership.