There is a (waning) misconception that a prenuptial agreement is a ‘get out of marriage fast’ card. It really could not be less the case. In Hollywood, the movie ends with all smiles when the underdog finally gets a break, and marries the object of his affection. Or the dashing hero finally saves the damsel in distress. The credits roll, and because we know the couple is together at last, we feel that they will never face another problem again, and they live in pure marital bliss for eternity. Happily ever after.
Cognitively we know this isn’t the case in the real world. Relationships are built on more than a few goofy moments and one kiss on the beach. Reality is nothing like the movies. It is much more complicated, which is not to say that romantic love is a myth. Quite the contrary. Romantic love exists, but it looks so different from the superficial view we obtain in 90 minutes at the box office, or in a tabloid magazine reading about a celebrity super couple. We are flooded with the idea that once you find your ‘soul mate’ your problems in reality disappear, and everything is perfect. If you are in a committed relationship for any amount of time, you know the difference between love, and the romance depicted on the screen or in magazines. And so, you also know that your relationship is built on a foundation so much more substantial than the idyllic romance of pop culture and fairy tales.
Just as your marriage wasn’t built frivolously overnight, a snap decision and suddenly you’re married- neither would it ever happen that a divorce could be something that suddenly comes about, easily and with suddenness. Having a piece of paper called a prenuptial agreement will not cast a magic spell over your relationship which facilitates a ‘get out of marriage quick’ plan. The fear that possessing a prenuptial agreement leads to one or both parties in a marriage making a flippant decision to get divorced is unfounded.
We would like you to imagine a scenario. Like a life coach, who asks you to envision your options to assist you in making the best choices for your future.
Scenario 1 - Married WITH a Prenup
You are married. You have been happy for several years, and have a couple young children. However, over the past 6 months, you and your partner have hit a bit of a rough patch. You are facing disagreements about in-laws and holidays, child care and the children’s educations. You have grown distant to avoid arguing about things, and the silence is creating a gap that swallows up the romance you once had. You don’t use the word divorce, and but you have implied the idea of separation. Neither of you is happy, and to make the marriage work, you will have to make changes. In this scenario, you HAVE a prenuptial agreement.
Does this document, which is a binding agreement in New York, impact your decision to move forward with filing for a permanent end to your marriage? Does the fact that you have a prenups cause you to call a lawyer, and say “That’s it. Since I have that prenups, I’m filing for divorce.” 99% of the time, the answer is no. Having a prenuptial agreement does not actually impact anyone’s decision to go into court here in New York to pursue terminating a marriage. The decision to begin divorce proceedings for either partner hangs in a balance that is predicated upon many, many factors, but we can tell you that possessing a prenuptial agreement is not a sort of ‘fast track’ to divorce should the relationship hit hard times. That line of logic is, well, not logical.
Thinking that a prenups facilitates divorce presumes that the only thing keeping a couple together is the partners avoiding the legal process of splitting up assets and debt. No matter what type of marriage you have, taking all things into consideration, we have never seen a prenuptial agreement push a relationship ‘over the edge’ into a separation. It is not as if, because you know that filing for divorce would mean your finances are already accounted for, that then you or your spouse would suddenly become eager to file the motion. Think about it; the prenuptial agreement does not remove the heavy gravitas of the situation at hand.
No one has ever said they filed for divorce in haste, because of a prenuptial agreement.
By the same token, we have seen the lack of a prenuptial agreement create a heightened stressful situation for couples when they are going through a tough spot in their marriage.
Scenario 2 - Married WITHOUT a Prenup
In the same hypothetical situation- married but growing distant, and have just discussed the possibility of a trial separation. You do NOT have a prenuptial agreement. You are facing mounting pressure about your dwindling savings, you need to pay one child’s way through private elementary school, and the other’s college tuition payments are beginning. The financial unknowns in the event of a split would be so great, leaving your futures apart from each other out of your control, that you are basically feel you must stay in the marriage even if you continue to grow apart- simply because dealing with a financial split would leave too many variables open for catastrophe. The stress of arguing may make you vindictive and spiteful, and you don’t want to see things get worse than they are. You just want them to get better. Whatever ‘better’ means for each of you.
In the scenario where you are married, have a prenups, and are going through a rocky patch, the prenuptial agreement does not affect your decision to stay married. You are able to act of your own free will, making decisions without the stress of looming financial uncertainty.
In the scenario where you are married, and do not have a prenuptial agreement while going through a rough patch, too much is at stake for you to even consider your options. You feel trapped. Neither of you can afford to move forward without the other. The marriage becomes an albatross, not a healthy partnership.
The couple in Scenario 1 works through their problems, discussing what they would do if they were to split, and how their future would look if they stay together. That couple decides that they are going to work things out—and they do. They seek counseling, and in counseling they learn ways to communicate better. They were able to contemplate separation- and they ultimately reject it because they were able to make a decision freely; without being confined by invisible handcuffs in the form of financial trappings.
The couple in Scenario 2 becomes riddled with anxiety about the claustrophobic feeling their marriage has. This inability to leave the relationship if they wanted to, all because of their financial circumstances, causes resentment to fester. These two don’t grow closer. They argue about money, and grow distant. They end up getting a divorce in the end, but after many unhappy years, and neither is satisfied with the financial terms of the split. This leaves both parties wishing that they had signed the prenuptial agreement many years ago, before all of this.
Possessing a prenuptial agreement in New York, clearly, does not lead to divorce. However, not having one will cost you more than you are willing to part with.