<span style="text-decoration: underline;">Question</span>: How do I approach my fiancé about a premarital agreement?

<span style="text-decoration: underline;">Short Answer</span>: Carefully.

<span style="text-decoration: underline;">Longer Answer</span>: In an open-ended way before a draft is prepared.

The cliché of a coerced and therefore unenforceable premarital agreement is the scenario of the bride at the church in her wedding dress, being handed a premarital agreement to sign just before she walks down the aisle.

Premarital agreements are more successful, and enforceable, when the engaged couple has discussed and agreed on the major terms before any lawyer puts pen to paper; providing sufficient time for discussion and consultation with a separate, independent lawyer for each member of the couple. To be surprised by receiving from a lawyer a draft premarital agreement that contains terms you and your intended have never discussed can be harsh and destructive. You would be starting out your dialogue from the point of view that your partner has staked out some territory – that you may disagree with – without ever having had a conversation about where each of you is coming from.

A better way to proceed would be to:

<ol><li>Buy an hour of a family lawyer’s time to learn about premarital agreements and the law in your jurisdiction;</li><li>Make a list of discussion topics or questions;</li><li>Discuss with your partner; and then</li><li>Have your lawyer draft a premarital agreement, hopefully based on terms to which you and your partner agree, share it with your partner, giving them time to consult with an independent lawyer of their choosing.</li></ol>

A premarital agreement generally deals with two possible eventualities: (1) if the parties divorce; and (2) if one spouse predeceases the other. It can also deal with a third area: (3) how the parties will organize their financial lives while they are married.

There are a number of reasons someone may want a premarital agreement, such as:

<ol><li>They had an ugly divorce in the past, or their parents had an ugly divorce, and they never want to go through that again.</li><li>They have children from a prior relationship and wish to protect them financially.</li><li>There is an extreme difference in each party’s financial circumstances, i.e., one has or earns far more than the other. That can lead to (a) a desire to protect one’s assets and income acquired prior to the marriage; and/or (b) a desire to make sure the less secure partner will be financially in a safe place even if there were a divorce or death.</li><li>They have received, and/or will receive gifts or inheritances, and they -- or their parents – want to make sure that the family gifts or bequests stay in their family.</li><li>They believe some aspects of divorce law are unfair, and want a contract with their fiancé that feels more fair.</li><li>They are involved in a family business with other relatives and wish to ensure that the business is protected in the event of a divorce or their death.</li></ol>

One of the benefits of entering into a premarital agreement is that it prompts you and your partner to discuss questions and issues you may not have discussed before, e.g., children (existing or future), finances, managing money, employment, retirement, inheritance.

If you think you want a premarital agreement, buy an hour of a family lawyer’s time to learn what rights and obligations may exist if the marriage ends by divorce or death. With that knowledge, ask your partner to speak to you about some of these topics.

Use open-ended questions such as:

<ol><li>What is your expectation of our respective employment situations after marriage?  Do you expect that we will both be employed full-time? Do you expect that one of us will step back from the workforce to take care of the home/children/the other spouse?</li><li>Do you want to have children?  When? How many?</li><li>What do you envision our roles will be in raising children, and providing childcare for them?</li><li>What is your expectation of what would happen if we were to divorce?</li><li>After we are married, how do you envision we will manage our finances?  E.g., how will we pay for household expenses, will resources be kept separately or together, will one of us manage investments, will we file joint income tax returns?</li><li>What are your thoughts/plans for retirement?  Retirement saving?</li><li>What do you envision if/when one of us dies?  With children or without children.</li><li>How important is the house or a house to either of us?  If one of us were to die?  If we were to divorce?</li></ol>

This discussion is more useful if you have knowledge of each other’s financial circumstances.

If you are about to make a lifetime commitment to your partner, try discussing even one or two of these questions, sharing each of your views on it. And start early. Enjoy your wedding preparations. You do not want to have these discussions as you are sending out invitations or putting down expensive deposits.

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