Should I Get A Prenup? Expert Advice From Aaron Thomas
“Prenup?! I thought you loved me!”
No, this didn’t happen to me but a situation like this is the first thing that comes to my mind when I hear the word prenup. So, I asked Aaron Thomas, a three-time winner of Atlanta’s Best Divorce Attorney and founder of Prenups.com, to help me understand this concept better.
With clients ranging from NBA Hall of Famers to Grammy award-winning artists, Aaron is one of the nation's top experts in family law issues. Through his extensive experience representing clients in various family law matters, he noticed that financial disagreements often lead to the breakdown of marriages.
To address this issue, Aaron decided that he’d much rather help couples stay together than help them get divorced. He created Prenups.com to help couples avoid the totally predictable money problems with thoughtful, fair, and loving pre- and postnups. As an advocate for financial planning before marriage, Aaron carries a fundamental belief that establishing a solid financial foundation during engagement can prevent many common marital disputes and help create happy marriages. With this in mind, he has become widely viewed as the go-to source for writing fair prenups.
6 Questions on Prenups with Aarron Thomas
1. What is a prenup and what is it supposed to do?
A prenup is a contract a couple enters into before marriage that sets out their rights and responsibilities both during and, if necessary, after the marriage. (Yes, During.)
2. For many of us, the mere mention of the word "prenup" stirs up a visceral emotional response, underscoring the deeply rooted feelings associated with it. What does this reveal about our society, and why, despite these sentiments, have prenuptial agreements experienced a surge in popularity?
Yes, “prenup” has about as good of a reputation as “root canal.” And given the context where most people hear about prenups, you can understand why. I think there are a couple of things at play here.
I think some of the reputation is deserved. There are certainly wealthy people who have used their power in the relationship to talk the less-moneyed spouse into an unfair deal. We’ve all heard the horror story of the guy surprising their fiancé with a prenup after the wedding guests have already started flying in. That’s never good, but luckily it’s a tiny percentage of the prenups that are actually being prepared in 2023.
I also think that the prenups most people hear about are the outrageous ones. The tabloid fodder, wealthy octogenarian billionaire with his young blonde, the rich and famous - those are the prenups we hear about in the news, right? They don’t write articles about the couple who just wanted a clean break without two years of lawyers if things didn’t work out, right? They don’t write about the couples whose prenups just lay out cleanly what each spouse’s rights and responsibilities are with respect to their different assets and debts that they acquire before and after the date of marriage.
Prenups also touch on an uncomfortable idea - the idea of divorce. When you’re getting married, it’s the last thing you want to think about. Just like people avoid getting their wills done because in some part it means thinking about dying.
That said, it’s true that more couples are getting prenups - some estimates are 3% of couples in 2000 to 15% or more today - despite the apparently unromantic nature of it.
There are a number of reasons why:
The average couple getting married today is closer to age 30, versus closer to 20/21 a generation ago. A couple getting married in the 1960’s was likely to be at the very beginning of their career, likely one job between the two of them, and between them had 1 or two bank accounts, no credit cards, no student loans, no retirement accounts, no equity in a property - a virtual blank state. The average couple getting married today has - between the two of them- 8-10 bank accounts, 4-5 credit cards, tens or hundreds of thousands in student loans, equity in a house, more than one retirement account, some stocks, and possibly a business. Getting married in the 60’s was like a startup business in your garage. Getting married today is a corporate merger by comparison. You don’t do that without some clear guidelines on who owns what.
Also, the average couple today is more educated on what it means legally to be married. This generation watched their parents and their friends’ parents go through 50% divorce rates when they were growing up. And more people are wise to the fact that divorcing people often lose the assets they had coming into the marriage because the law makes it extremely easy - likely even - that you will unwittingly commingle your separate property with your marital property.
I also think that a lot of couples today recognize that getting married is like signing a legal and financial contract regardless of whether you sign a document or not - and get truth is that everyone has a prenup. You just choose between one you draft and one that’s drafted by the state you happen to live in. And most people, given the choice, will choose to decide on their own what a dissolution of their marriage will look like from a financial perspective rather than put it in the hands of a judge their assigned to randomly.
This generation sees a prenup for what it truly is - insurance against a financial disaster. We insure against car accidents, home and property destruction, medical emergencies, we insure against disability and untimely deaths - a divorce is a financial disaster - a disaster that is not always 100% under your control - that deserves protection as well.
3. What are the most common misconceptions about prenups?
There are two huge ones.
One is that prenups are only for the super wealthy. If you accept that one of the tools of a prenup is to avoid an expensive, long, messy divorce, then anyone with a divorce that could end up in court could use one. And today you can get a fully customized prenup by a lawyer for a few thousand dollars - a tenth of the cost of the average wedding - so they’re more accessible than ever before.
The second big misconception that they are only for protecting premarital wealth. The benefits are so much more than that.
4. What are the underrated benefits of prenups?
The most underrated benefit is avoiding a messy divorce. The average divorce case costs fifteen thousand dollars in attorney’s fees per spouse and takes a year and a half to complete - and the emotional cost far outweighs the already large financial cost, in my experience.
But beyond negotiating the terms of a financial split, it can really be a chance to negotiate what your financial marriage is going to look like.
Who owns the assets you each come in with?
Who pays the debts you each come in with?
Are you combining all of your paychecks in one joint account and pay all expenses out of that?
Or will you Have separate accounts and contribute to a joint account for joint expenditures?
How do you handle the situation where one spouse moves into the home one spouse owned before marriage?
Are you going to have an expectation of transparency on income, debts?
Are you mostly living separate financial lives?
What happens financially when one spouse isn’t working?
A lot of people don’t recognize that you can also negotiate the financial marriage as part of your prenup - and that’s where there’s some real benefit to your marriage itself.
Yes, avoiding a messy divorce is a good enough reason to have a prenup - but done right, it can actually help you avoid money arguments at the beginning of your marriage.
Another huge underrated benefit is that for a prenup to be enforceable, each spouse has to disclose all of their assets and debts to one another. Just that act of transparency at the beginning of a marriage is a huge positive step for many couples.
5. What are some tips for someone who is looking to broach the topic of a prenup with their significant other?
I find that most people don’t disagree with the component parts of a good prenup - what they don’t like is the imagery, the Hollywood-inspired reputation of prenups. As counter-intuitive as it might sound, if you think your partner might be hesitant, I wouldn’t go in with “I want a prenup.”
I’d address the component piece of a prenup in order first:
Should we disclose all of our assets and debts to one another coming into marriage?
Should we agree on who’s responsible for the debts and assets we each come in with?
Should we come up with an agreed upon plan for our bank account structure? And agree on some of the common possibilities - job loss, children, a stay at home parent, aging family responsibilities, etc.?
And yes, can we agree what would constitute a fair way to end the relationship that wouldn’t involve lawyers and tens of thousands of dollars?
If you agree to these things, guess what? You’re pro-prenup!
6. I've heard you say that you and your wife have a clause in your prenup to discuss any financial purchase greater than $500. What are some other suggestions you have for clauses to promote a healthy relationship as it relates to finances?
Yes, that’s right. The rule is regarding money spent from our joint account. In reality, we actually discuss expenses that fall far below that amount because that level of communication about finances has become a habit.
But another suggestion is the corollary: we have complete autonomy over the money in our separate accounts. We each have an “allowance” that goes into our separate accounts that we can spend without permission or oversight from the other spouse. I think it’s important - even more so in couples where there is a significant income disparity - that each spouse maintain some financial independence.
I also am a huge proponent of the annual or quarterly “shareholder’s meeting” where you sit down with your spouse and go through a checklist of financial topics you agree to discuss periodically, but can otherwise forget to discuss: what you’re doing for retirement contributions, investment strategies/performance, the household budget, upcoming expenses and desires (having a kid? Moving? Travel?), life/health/car insurance options, and anything else that fits your situation.
How have your thoughts on prenups changed after reading this? Do you think you should get a prenup? Will you get one?
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