Coping With The Shotgun Prenuptial

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A MarketWatch.com web feed on March 7, 2021, brought an article published under The Moneyist.  The format is question and answer and the inquiry was from a woman marrying and older man who approached her three days before the wedding with a prenuptial agreement.  Needless to say she is today married but coping with re-bound anger as she realizes that this was sprung on her just as the table settings and place cards were being set out at the reception hall.

Can something like this happen today?  In Pennsylvania and many other states, the answer is yes.  Some states have statutes stating that a late inning prenup is either invalid out of the box or presumptively invalid.  Here, your spouse can present the prenup as you approach the end of the march down the aisle.  If you sign and if you have a full disclosure of assets or you “waive” the disclosure, the trap has sprung and the agreement binds.

Any hope here?  Yes.  Step 1.  Shortly after you accept a proposal of marriage and well before you sign contracts for food and frolic, you need to ask some questions.  It can be an innocent question such as, “Are there any agreements we should put in writing before we marry?”  You may get the ridiculous or the sublime:  “I want at least six kids.” “My mother should live with us.”  We have previously recommended a ceremonial exchange of credit reports so there are no financial surprises.  However, if your intended lies to you and suggests no agreements are needed, you will know what you need to do when he or she reverses course and says a prenuptial is “required.”  If you go through with a marriage where your future spouse lied to you about such an agreement, lawyers won’t be much help.

The reader may realize, as the community learns of an impending marriage; as deposits are made to venues, caterers, photographers and printers, the pressure to “follow through” and execute a prenuptial agreement grows by the day.  Only the bravest individual is content telling a hundred prospective celebrants that there will be no marriage because the love of your life does not want to create any joint assets or has $200,000 of undisclosed premarital debt.  Credit reports are a painless ask, but perhaps it makes sense to ask and provide a balance sheet of what is owned and what is owed.  If your fiancé owes $20,000 in back child support, does that no merit some inquiry before you say “until death do us part?”  We have done several interviews with clients who learn of bad debt, back support arears, wage attachments and tax deficiencies days before their marriage is to be celebrated.  People who purchase homes routinely hire home inspectors as a condition to closing on the home acquisition.  However, few ask for a financial disclosure before a wedding is celebrated.

Circling back to the facts in The Moneyist inquiry, the request for the prenuptial came three days before the wedding.  In normal times, three days means friends and family are boarding planes, trains and automobiles headed toward a momentous event.  So, the agreement was signed to avoid the embarrassment of telling the world that this engagement was not an epiphany but a tragedy.  Can we blame the person who buckles and signs rather than risk humiliation by canceling the wedding?

We had a similar, but less draconian experience a couple years ago.  Happy young couple.  Both well educated.  One spouse was a recently minted professional who had a monumental amount of student debt.  The other spouse was the child of an immensely wealthy family and was a multi-millionaire in his own right.  The wealth was not in trust but the groom had essentially no control over the assets.  We advised the client of the dangers.  She responded that she understood but trusted her intended to do the right thing.

As lawyers, this is where the beach touches the ocean.  We are advisers, not managers.  The client said she felt comfortable managing the situation as her marriage evolved.  Our advice was, ok, but realize that for each year you live under the terms of this agreement, your wealth will probably never approach his and your power to eliminate or renegotiate this unfair agreement will decline.  Marrying into a bad prenuptial agreement is problematic.  Moreover, letting years go by where your spouse’s income and assets multiply and you chisel away at reducing your negative net worth will take a toll from which your financial condition may never recover.

Often this discussion ends with the less wealthy future spouse suggesting it won’t matter.  Who cares if my husband or wife is worth 10-20-30x what I have?  At ages 25-30, this seems an entirely fair question.  But if you are 50 with a net worth of $50,000 when your spouse’s is $5,000,000 and you are turned down to rent an apartment because you have no recent credit history, you then realize the damage a seemingly innocent prenuptial can inflict.

The Moneyist article on MarketWatch.com is more optimistic than we are about how to set aside these agreements.  They are just as binding if signed the day of the wedding as the month before. They are not subject to be set aside because they are draconian or unfair.  The Pennsylvania Supreme Court ruled 30 years ago that people have the right to make contracts; smart ones and not so smart.  Unfair contracts are no less binding than the fair ones.  So if marriage is in the air, make certain you clear that air by asking whether the marriage is one which will have “conditions.”  And if you are handed an agreement to consider in the days before your wedding, run, do not walk, from a spouse who has so little regard for you.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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