James R. Balmforth: Are Prenuptial Agreements a Good Idea?

The law that governs prenuptial agreements (known as “premarital agreements” in Utah) is found in the Utah Code in Title 30, Chapter 8. We will answer most questions about premarital agreements by referring to the applicable sections of the Utah Code and some Utah case law on the subject.

Should I get a Prenup?

In answering this question, as a prenup lawyer, I could give you the generic opinions that you can find in dozens of other blog postings and articles online or in the library, so I will leave you to the web or the library to find those. As to my personal opinion:

For most people (especially young people marrying for the first (and hopefully the only) time, I don’t feel that prenuptial agreements are a good idea. The very fact that the question (of whether prenuptial agreements are a good idea) is asked implies that people have their doubts.

Briefly, prenuptial agreements often make sense for people entering into another marriage after divorce or after the death of a spouse. Prenuptial agreements in these situations can help prevent friction between the couple over ownership of property you worked hard with your previous spouse to obtain and that you may feel the new spouse ought not claim or share an interest. By the same token, prenuptial agreements help previously wed couples protect their children’s inheritance from the “evil step parent.” Prenuptial agreements can also make sense for people of extraordinary financial means to protect them from “gold diggers” too. Otherwise, however, I think prenuptial agreements start a marriage off on the wrong foot.

Prenup Lawyer

Let me give you an imperfect analogy to explain why I’m against prenuptial agreements generally, especially for first-time marriages by the relatively young and poor:

You commit to training for and running a marathon, but just in case you decide not to finish training or finish the race itself, you enter into a “pre-marathon agreement,” which provides that in the event you do not finish, you are paid half of your hourly wage you would have otherwise earned if you had chosen to work at your job instead of train and two weeks’ vacation. How likely are you to finish when you have not just a safety net, but an escape hatch?

How likely are you to stay committed to your training regimen? How easy will it be for you to “realize” that you really didn’t want to finish a marathon in the first place, or that the rewards of training for and completing a marathon don’t justify the personal sacrifices required of you?

“But wait,” you may say, “what if through no fault of my own I can’t finish the training or the marathon?” What if a car hits you during a training run? What if you get dehydrated and can’t finish? Friend, finishing the race is important, but it isn’t the point. It never was. In life there are no guarantees. Training for the marathon is about conquering yourself (not coddling yourself), and in conquering yourself, you know yourself and your purpose more fully, deeply, and accurately. Knowing the truth about yourself, your unique talents and limitations, you better equipped and more willing to bring out the best in yourself. “Bring out the best” denotes that you must give of everything—your time, your money, your property, your attention, your labor, your comfort, your convenience, your body and soul.

Marriage is not simply a question of “what’s in it for me?” Marriage is bigger than you, it’s bigger than your spouse. It’s even more important than the both of you combined.

Don’t get a prenup to avoid the demands of divorce. As my mother told me, it’s the people who do nothing who never fail. Burn your ships and turn your back on the single life when you marry. Commit to your spouse and to your marriage and their success. Success is meaningless without the risk of loss, of pain, of sacrifice, of failure. Success lies in transcending risk, pain, and sacrifice.

I know that the following thought comes from Jewish philosophy, but as I was writing this I could not find the reference, so I apologize for that, but I still wish to share it with you because it encapsulates both the value of marriage and why a prenuptial agreement in most cases (you’ll note that I did not state “in all cases”—there are times when a prenuptial agreement makes good sense): Marriage is a lifetime commitment to provide constantly to your spouse emotional intimacy, thereby uncovering your true self and, ultimately, your unique purpose for being created.