As with most things in life, it’s all a state of mind.  You can either see the glass as half full or half empty.

When my clients come in, I spend a great deal of time with them talking about not just their finances and what they want in the prenuptial agreement, but how they feel about each other and how they feel about the whole process of negotiating a prenup.  I get the usual response that it’s unromantic, uncomfortable and awkward to bring it up.

“Well,” I tell them, “consider that almost half of all marriages in the United States end up in divorce.  And a majority of those getting divorced cite arguments over money as the primary reason for the divorce.”  I continue, “You should think of a prenup as hedging against those odds.  If you and your fiance have come together to clearly talk about your goals and outlook about money before you enter into marriage, you essentially eliminate the primary reason for divorce.”

I also tell my clients that instead of starting out on a road where you don’t know or see the path, a prenuptial agreement lays out a clear path so you know what could happen because you’ve seen a map of it.  You plan now, out of love, rather than letting hate guide your actions in case of divorce.

If you can see and accept this concept that a prenuptial agreement is a plan of love, then it can be romantic.  It can be a comfortable talk.  And it will be easy to talk about it.  While you’re at it, dim the lights and have a glass of wine.

The issue with online prenuptial agreement forms is that no one ever sat across from you to gather information and to counsel you on the validity of the prenup.  The reason why prenuptial agreement lawyers charge the fees that they do is because they are giving you something that a computer program cannot – independent and personal legal advice.

A couple of quick reasons why the prenuptial agreement this woman called about would not have been valid is that it was too short to contain any financial information about the parties.  Both parties in a prenuptial agreement must trade detailed and complete financial information.  Secondly, in a generic prenup, there would not be any discussion of the  ”section 34″ factors that is required here in Massachusetts to be in a prenuptial agreement.  There is specific case law in Massachusetts that requires this and a non-state specific prenup would not have this.

If you’re going to spend the time and money to draft a prenuptial agreement, spend it wisely and don’t print one out online.

I’m often surprised when I do estate planning for newly wed couples when I ask them about each other’s financial picture and they simply can’t tell me.  They don’t know and they never bothered to have that conversation.  Nearly half of all marriage eventually end in divorce and of those, most are driven by disagreements over money.  If those are the statistics, then having a clear picture of each other’s current financial picture and also an understanding of each other’s goals and outlook on money is invaluable to keeping a marriage healthy and going strong.

Most couples however, only consider a prenuptial agreement with one or both have significant assets.  This is of course a wise thing to do.  However, couples on the other side of the spectrum, those with lots of debt, should also consider a prenup.  Debt incurred in a sole person’s name is generally regarded as that person’s debt alone.  But when couples get married, finances are mixed and sole debt starts to become marital debt.  At some point, there’s little or no way to distinguish what was sole debt and what is marital debt.  Bottom line: If you have a large amount of debt, get a prenuptial agreement to protect your future spouse.

I have had requests to include provisions dealing with a sex schedule for the couple.  In those cases, I tell them that it can be included, however it cannot be enforced.  If a husband sued his wife for breach of contract for not abiding by the sex schedule, a judge will rule that provision invalid in the prenup. This is because to condone it or to enforce it (legally called specific performance) would mean that the Commonwealth of Massachusetts condones rape.  You cannot force another person to have sex even if they’re your spouse and it’s not a right you can contract.

In almost all prenuptial agreements and in most contracts, there is a severability clause put in which states that if some parts of the contract is ruled invalid, it does not invalidate the entire contract but instead, the invalid portion should be removed.  If you do have some sort of sex schedule included in a prenuptial agreement, make sure it also contains a severability clause.

• Most recent statements from all bank and brokerage accounts
• Most recent statement reflecting all retirement accounts
• Most recent statements of any stocks, bonds, mutual funds, ETFs held outside of brokerage accounts
• Any life insurance policies
• Most recent pay stub
• Copies of tax returns for at least the last 2 years
• Most recent statements from all credit card or debt obligations
• Information regarding any real property, including but not limited to: fair market value of the home (tax accessed value), total mortgage amount, names of people on the mortgage and title
• Information regarding any automobiles and motor vehicles

If you bring these items and any other items relating to your finances to your first meeting with your prenup attorney, the meeting will be fruitful and productive.  Be prepared for the initial meeting with a prenup attorney to last approximately 2 hours.  It takes this much time to gather all the financial information and speak with you about the goals of the prenuptial agreement.

You cannot make provisions for child support, child custody or visitation ahead of time.  This is because the standard for child related issues is always the best interest of the child.  And it is in the best interest of the child if we look at the situation at the time of divorce to determine child support, custody and visitation issues.

Think about it, if child issues were allowed in a prenup and is binding on all parties, then even if one parent abused the child, they would still be entitled to custody or visitation with the child simply because the prenuptial agreement says so?  That would simply not be right.

What about states like California and New Mexico that have community property?

Well, in those states, your prenuptial agreement will still be valid!  Community property laws or the Equitable Division laws of Massachusetts are simply default laws.  They are default for couples who don’t have a prenuptial agreement to instruct the courts.  If the couples agree beforehand, the default divorce laws do not apply.

So don’t worry.  Move around as much as you want and wherever you want.

Because of the Defense of Marriage Act (DOMA), constitutional bans on same-sex marriage in other states, and a lack of same-sex marriage laws in other states, couples who marry here in Massachusetts and in New England suffer great inequalities once they leave the safety of those select states that allow same-sex marriage.  Once they leave and go to a state that does not have same-sex marriage, they’re no longer married!

So what happens if you were married here in Boston, Massachusetts and you  move to Texas AND you now want to divorce your spouse? You can’t.  You cannot get a divorce because you’re not married.  This is where a prenuptial agreement might help.  If you had a prenuptial agreement and you and your spouse is having a disagreement on how to divide the marital assets, then the prenuptial agreement is simply a contract between two people.  It is a contract whether or not the couple is classified as “married” or not.  In theory, a prenuptial agreement will still hold up in court (although not family court most likely) if a disagreement and dissolution were to occur in a same-sex relationship in a non-friendly state.

This is not guaranteed to work however because many states are still hostile towards the concept of same-sex marriage and therefore, they might seek any excuse to disenfranchise anyone who is gay.  However, having a prenuptial agreement can only help – not hurt.

In one of my previous posts, I had talked about the criteria for upholding a prenuptial agreement in court and one of the factors was fairness.  When I talk about fairness, it is on a spectrum of how unfair it is.  It’s not whether the prenuptial agreement is fair – or not.

A prenuptial agreement in many situations creates an “unfair” situation because in most cases, the parties will agree to keep assets held before the marriage as “separate property” and assets acquired during the marriage as “marital property.”  If there were no prenuptial agreement in place, during a divorce, a Massachusetts probate and family court judge will apply the legal standard of “equitable division” in deciding how to split up property between the husband and wife.  Equitable division is a fancy legal term for – you guessed it – fair.

So signing a prenuptial agreement is not about fair because if everyone wanted it to be fair, we’d just use the default divorce laws.  A prenuptial agreement and the negotiation process that takes place before signing one is really about both parties fully disclosing their assets, talk about money, and their financial goals.  So many couples marry without knowing much of anything about their partner’s assets and liabilities.  Yet when you look at the national divorce rate – 50% – the most common cause of divorce is disagreements over finances.  Given that finances is such a big part of marriage, it makes sense then to talk about it before getting married and writing it down in a prenuptial agreement helps the couple to facilitate the process.