Is A “Massey” Prenuptial Agreement Necessary?

The 2003 movie Intolerable Cruelty stars George Clooney and Catherine Zeta-Jones in a divorce comedy with some real-life issues that carry particular importance to couples contemplating marriage, and to these same couples if they later find themselves contemplating divorce. In Intolerable Cruelty, Miles Massey (George Clooney) is an exceptional divorce lawyer who specializes in saving cheating husbands from having to pay expensive settlements to their wives through the use of his ironclad premarital agreement termed the “Massey prenup.” Miles defends Rex Rexroth (Edward Hermann) from claims by his gold-digging wife, Marylin Rexroth (Catherine Zeta-Jones) in court based on the defense of the Massey prenup. Marilyn is denied any alimony or other divorce compensation, despite a private investigator’s “getting the drop” on Rex and his paramour.

Comedic element aside, is there such a thing as an “ironclad prenup” and do you ever really need one?  I think it’s fair to say that most parties seeking a premarital agreement prior to entering wedlock (or a post-nuptial agreement if entered into subsequent to marriage) assume that the agreement they will be entering into is similarly ironclad.  Under Virginia law (VA Code § 20-155), premarital agreements are enforceable to the same extent, with the same effect, and subject to the same conditions, as provided in §§ 20-147 through 20-154 for agreements between prospective spouses, except that such marital agreements shall become effective immediately upon their execution.  So if the premarital agreement meets the customary requirements of a valid contract (full disclosure, adequate time to consider its terms, arms-length transaction, negotiated by an attorney representing only one party and the other party has been afforded the right to have the premarital agreement reviewed by counsel of his or her choosing, and there is no fraud, undue influence or misrepresentation in the drafting of the agreement); then it will in all likelihood be upheld by a Virginia court.  That doesn’t make it “ironclad,” only presumptively valid and likely to be upheld in court.  Interestingly, in Virginia, as long as the premarital agreement (or post-marital agreement) was valid when negotiated and signed by the parties, the courts do not look to see if it is still fair when it comes time to enforce or defend the agreement.

So, what are some of the pros and cons of having a premarital agreement drafted, and as to the second question posed, do you even need one?

Premarital agreements (and post-marital agreements) are far more common for second or subsequent marriages where one or both parties have the intent to protect his or her assets for children from a prior marriage and there are substantial assets to consider.  Most of the time, but not always, a young couple just starting out doesn’t need a premarital agreement as they don’t have the assets (or liabilities) to justify entering into a premarital agreement.  Sometimes the couple contemplating marriage doesn’t want a premarital agreement themselves.  However, the family of one (or both) of them with wealth to protect or who has doubts about their son or daughter’s choice in a spouse may want the couple to get one.

There are a number of common misconceptions about premarital agreements including that they are only for the wealthy.  While it is often the case that premarital agreements are used to protect individual and family wealth, premarital agreements can be useful by the “average” couple in reducing the high legal costs of a divorce and in eliminating the stress that a divorce with “everything on the table” can bring.  Premarital agreements can also be used as a financial planning device in conjunction with an estate plan to make sure that the spouse’s estate planning terms are carried out.  Consider for example, that some of the assets of one of the parties may be deemed heirlooms and a premarital agreement can assure that these assets stay in the family.

There are downsides as well.  Premarital agreements are often seen as reducing marriage to a series of business terms.  One of the spouses may become disinterested or disengaged in the other party’s assets such as in assisting his or her spouse in redecorating or remodeling the marital home that is titled solely in the other party’s name.  Don’t be shocked to hear the refrain that, “I don’t care, it’s your house,” if you ask your spouse for his or her opinion on remodeling or redecorating because, “it’s your home, not mine.”  Premarital agreements can therefore also sow unintentional future seeds of discord.  On the other hand, knowing where each party stands can lead to a more solid foundation in the marriage than simply hoping that the relationship will work itself out and your love for your spouse will take care of everything.  I’ve often heard it said that “hope is not a business plan,” and having a premarital agreement can be the foundation of a good business plan between the parties.

Another common misconception about premarital agreements is that only men want premarital agreements.  While in my experience, more men than women seek them, premarital agreements can be a useful way to determine each party’s rights, obligations, and expectations in the marriage.  For example, if one of the parties is going to stay home and care for any children that the parties may have, it can be useful to set out the parties intentions at the start such that the stay-at-home mom or dad has the security of knowing that his or her foregoing of a career outside of the home will be considered by some amount of financial compensation if the marriage fails.  This is usually accomplished by determining in advance a certain level and term of spousal support and maintenance.  It’s far better to know going in what each party’s exposure is to spousal support than leaving it to the court later to figure out after an expensive and acrimonious trial.

While movies often mirror real life, you can certainly avoid the intolerable aspects of divorce by having a premarital agreement under the right circumstances.  When and whether to get a premarital agreement is not a romantic comedy but rather serious business.  If you think a premarital agreement is in your future; consider utilizing the services of fellow in the American Academy of Matrimonial Lawyers with the training, education, and experience in this complex area of the law.  I would welcome the opportunity to be of assistance in this regard.