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Prenuptial Agreements: Beyond the Necessary Evil

Why is it that just mentioning the word “prenup” can evoke a negative reaction?

By Keith Michaelson, Don Opatrny and Mark Haranzo

Working together to develop a prenup can be one of the most valuable steps a couple can take to strengthen their relationship as they plan for married life.

Why is it that just mentioning the word “prenup” can evoke a negative reaction? Does the insistence on a prenup by the partner with assets or by their family necessarily create a divide between the couple, just as they are about to make a public commitment to their relationship? Families with significant assets consider a prenup to be an important risk management measure for protecting their financial interests. But this position can send a message to a future in-law that they are considered a risk to be managed, rather than a new family member to be welcomed. How then can a couple work with appropriate counsel to create a prenup that provides the essential protection for stakeholders while also strengthening their relationship?

Finding Relationship Balance

When one partner in a couple has financial assets disproportionate to those of their partner, the typical anxieties involved in entering a marriage are greatly magnified. Advisors aware of the relational risks can help the couple explore the ways in which financial assets can actually undermine their marriage over the long term and how they might proactively reduce these risks.

A marriage has the best chance of flourishing when partners are able to create balance in their relationship on a number of distinct levels, each of which comes under stress when partners enter a marriage with unequal financial resources. The three areas most at risk of imbalance for wealthy couples are: Boundaries, Power, and Giving and Receiving.

Boundaries

Everyone is hardwired to develop powerful attachments to their families of origin. As a new marriage begins, the balance of loyalty needs to shift. A family business, or other jointly held financial assets, can increase the gravitational pull of loyalty ties. The result may be a deep sense of responsibility, dependency, or even rebellion, that influences personal decision-making. These feelings may be further exaggerated when one of the partners discovers for the first time the extent of his or her family’s wealth during the prenuptial process.

Split loyalties may keep one partner feeling on the outside of decisions, even after marriage. A wife may prioritize time with the business rather than with her husband; or a husband may insist that holidays be celebrated with his extended family. The process of creating a prenup together can help the couple focus on making their new relationship primary. Joint decision-making authority that supports the marital bond can be woven into the fabric of a prenup in ways that protect the couple's future as well as the heirloom assets. 

Power

Unequal access to financial resources can create an implicit hierarchy in a new marriage. Without appropriate awareness, there can be lifelong implications in whether the partners can hold equal status and decision-making authority. A couple may be acting from the belief that money makes you a more worthy or more “successful” person or they may believe that money is to be viewed with suspicion or with a guilty conscience. Without consciously exploring power dynamics in the relationship, patterns develop where the partner with assets is either elevated to the dominant position or conversely, relegated to a subordinate position as a way of unconsciously creating balance.

Options can be considered for managing the financial imbalance by explicitly giving control over certain decisions to each spouse or by accruing funds over time in an account in the name of the spouse with fewer personal assets. Couples can thoughtfully create structures and processes for the financial empowerment of both spouses with appropriate safeguards against irresponsible behavior built in. 

Giving and Receiving

There can be danger in only one partner having access to assets that support the couple’s lifestyle. Even when done with love, giving inherently creates an imbalance and provokes a feeling of indebtedness. The giver can come to feel entitled and deserving of a free pass on relationship problems. This sentiment can be supported by the thought that she or he alone has made possible the privileges enjoyed by the family, overvaluing financial support while undervaluing other contributions. 

A receiver can get stuck in guilty feelings and defer around important family decisions, even while their resentment over the imbalance of power continues to mount. Recognizing this issue, the couple can build into the prenup provisions for creating access to financial resources in a way that mitigates the relationship risks associated with financial “gifts” in a marriage. 

Writing a Relationship-Focused Prenup

The process of creating a prenup that supports the development of the marital bond has significant implications for members of the legal profession. A lawyer representing the asset-holding family will naturally see their role as protecting the financial interests of their client. But if they do this without also supporting the new couple, they can inadvertently create more problems than they solve. When financial risk management is the only priority, consequential seeds of future conflict are often planted.

Because each partner should be represented by separate legal counsel to ensure that the agreement is legally binding, a two-step process can mitigate the need to look narrowly at self-interest. First, a couple outlines elements of a mutually agreeable agreement with the support of a relationship advisor. Working closely with a trusted attorney, they then develop a term sheet for use in consultation with their individual attorneys. Starting the legal consultations having already resolved significant differences also reduces the time and expense needed to complete the agreement.

Supported by this process, healthy marriage partnerships can become the powerful “unsung heroes” in wealthy families, growing essential human and financial capital in successive generations.

 

Keith Michaelson and Don Opatrny are family business advisors with The Lovins Group in Guilford, Conn. Mark Haranzo is a private client lawyer with Holland & Knight LLP in New York City.

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