In Donald Trump’s new book Think BIG and Kick Ass in Business and Life, co-written with Bill Zanker of The Learning Annex in New York, Trump and Zanker say, “Marriage is a contract unlike any other contract in life. You marry for love. But your signature on the marriage certificate is all about rights, duties, and property. It’s a legally binding contract that knows nothing of love. If the love dies, all you have left is a resentful ex-spouse and the marriage certificate. There’s nothing more terrible than an ex-spouse with a ten-ton axe to grind, and no agreement on how your common property is to be divided. It usually leads to all-out war that is more vicious than any legal battle in business and could easily lead to your financial and emotional ruin. Always get a prenup. It’s just too risky not to.”

You might think to yourself, “Well, of course Donald Trump needs a prenup. He’s been married a bunch of times and he’s a billionaire. But I don’t have anything in my savings account, no retirement, and my house only has $10,000.00 in equity. I do not have anything worth protecting so I don’t need a prenuptial agreement. Plus, my spouse and I would never act that way.”

That line of thinking is wrong for three reasons:

1. When you start a business, you write a business plan. When you go on a trip, you buy a map. When you go to college, you follow a curriculum so that you can graduate. In each case, you have a plan to get from here to there. In each case, you acknowledge that things may very well change and evolve, but you have a framework that allows you to easily adapt to change. After divorcing people for seven years, my experience suggests that one of the problems in many marriages is that people do not enter the marriage with a plan. They do not plot a map of the direction they want their relationship to go and they have no thought for the changing landscape of their marriage.

When people are marrying, they are afraid to talk about money, they are afraid to talk about potential divorce, and they are really afraid to stake a claim to things that they have worked hard to gain. It seems so anti-love to rock the boat with these things. But, on the other end, when the divorce is pending, I am constantly shocked to hear what people THOUGHT was the law, what they thought both parties agreed to, and what they think they deserve from the other party or instead of the other party. These misperceptions could have been avoided by talking to each other and with a lawyer at the beginning, prior to marriage.

In fact, I would go so far to suggest that many of my clients would not be getting a divorce if they had a marital plan (also called a premarital agreement or a prenuptial agreement) at the time of marriage. The habit of talking through difficult subjects would have served them well, if nothing else. More importantly, both parties would know what the rules of play are, no surprises. If every dime earned, goes into the “marital pot,” they would both know it. If one party has a business and he intended to keep that business free and clear of claims from the other party, they would both know it. Imagine how many fewer fights a couple would have over the lifetime of their marriage if a plan were spelled out on day one?

2. You do not need to have any assets or money right now in order to make a marital agreement worthwhile. Most people have the expectation and the intention that they will be more successful and have more money in the years to come. Donald Trump and Bill Zanker make money based on their understanding that people want to succeed. They know that people do not mind investing in some hard work in order to build a better future. This is one of the foundations of our American culture; work hard and accomplish the American Dream. Trump and Zanker are reminding you that you will have a different life in 10 years and there is a good chance that you will have greater assets and income. After you work that hard to get from here to there, don’t you naturally want to protect it?!

For some reason, we all believe that prenuptials are an attempt to “screw” the other person out of something. This is just not true. While prenuptials are not an “arms-length transaction” and, therefore, they do require more scrutiny to make sure that no one was forced into the agreement, that does not mean that prenuptials are inherently bad. Good lawyers make sure that both parties have disclosures of information, time to negotiate and consider, and any legal advice they need to understand the document. This allows each party to know exactly what he or she is signing. Each party negotiated for it, understands it, has had the time to digest it, and agrees to it.

3. Maybe you still cannot see the need for a marital agreement because you believe that you and your spouse are going to be able to work out any issues that come up. You believe that you and your spouse are both calm, rational, kind people, who would never intentionally hurt each other. You hear the horror stories about divorces, but you say to yourself that those people are emotionally unstable; you and your spouse are different. My clients are wonderful, kind, rational, calm people. Interestingly, opposing counsel representing the other party also feels that her clients are wonderful, kind, rational, calm people. Yet, we cannot come to agreement on every issue. Without fail, the inability to come to an agreement makes EVERYONE less wonderful, less kind, less rational, and less calm. Chances are good that you and your spouse will be no different.

It may be hard to see how a marital agreement can serve you, and you may be concerned about how to approach your future spouse. We can help you. Come in for a consultation and we can help you create a plan that will work for you and your mate, and we can help you talk to him or her about it. Start this process as early as you can, at the same time you begin your other wedding plans. Marriage is good – marriage with a plan is better.

Utah Family Law Blog