Prenuptial Agreements

In this episode of I Do Until I Don’t, Josh and Marvin unpack one of the most important—and often overlooked—topics in modern relationships: prenuptial agreements (commonly referred to as a prenup). Whether you’re entering your first marriage, navigating a second or simply thinking ahead, understanding what a prenup is and isn’t can make all the difference.

Josh and Marvin discuss the legal, emotional and practical sides of prenups, offering insights on how these agreements can provide clarity, protect assets and help couples communicate about the future. A prenup isn’t just for the wealthy—it’s for anyone who values peace of mind and proactive planning.

Key moments:

1:30 – What is a prenuptial agreement?

3:26 – Who needs a prenuptial agreement?

4:56 – Prenuptial agreements for second and third marriages.

7:54 – What cannot be included in a prenuptial agreement?

8:35 – What can be included in a prenuptial agreement?

9:04 – What to consider before waiving maintenance in a prenuptial agreement.

11:15 – Modifying a prenuptial agreement.

12:12 – Protecting non-marital assets.

13:36 – Duress and unconscionability in prenuptial agreements.

16:39 – Josh and Marvin recap their conversation and share top takeaways.

Transcript:

Apparently, you know, I was listening to something today that in Europe they’re actually selling tickets to their wedding [No. Come on.] to strangers to come celebrate with you. I don’t know. I’ve heard it in on the radio this morning. I didn’t do my research.

[Music]

Here we are again. I Do Until I Don’t. And I guess today’s topic is pretty good for the title of our cast here. I Do Until I Don’t. All right. Prenups. [Prenups.] Why is it so relevant to enter into prenups? Because it helps you plan when you’re saying I do in the event that you no longer do, and then you don’t and you want out. So, this is some details and conversations generally about prenuptial agreements.

Prenups make me nervous. So, I mean, I’ll open with that because I think prenups are an exercise in predicting the future and in unforeseeable consequences. Because we are creating a framework, and rules, and guidelines today with today’s understanding of the future and our lives. But life is unpredictable and long. And so the concern I always have when I’m drafting a prenup is I want to have something that will accommodate the many twists and turns we see in life, but that may not be so draconian and buttoned up that people might find themselves in sticky situations they didn’t imagine before they got married.

So why don’t we dive into [Let’s do it.] the importance of it, right? [So, what is…] Yeah.

What’s a prenup? A prenup is a private agreement between two people in contemplation of marriage in which they agree to resolve or predetermine a variety of issues that may become relevant at the time of divorce. So, a prenup is entered into before the marriage which requires full disclosure of what you’re bringing into the marriage, all of your debts and assets. And in the scope of the prenup we’re going to hammer out things, like well, what happens to support, or property division, property classification, attorney’s fees. It’s actually a very broad set of topics, maybe best defined by what it doesn’t include. But a prenup at its core is an agreement between two individuals that, should a divorce occur, certain rules and guidelines will be followed.

You know, I see it also in simple terms of…not that your version wasn’t simple, but it’s just… [So boring] a way of saying [laughter] it creates predictability in the future, right? It’s an awkward conversation to have now because you’re going into a marriage thinking you’re never going to divorce, but you never know what happens. [Right.] But the way I like to tell people is it gives you some predictability. [Yes.] It gives you some semblance of surety as to what’s going to happen in the future in the event something happens in your marriage and you need to get divorced. It creates predictability in allowing you to move forward, and focus on moving forward instead of making it an emotional process. [Yes.] I agree with you. Right? We’re creating a set of rules based on today’s circumstances, not knowing what could potentially happen… [Makes me so nervous.] hundreds of years down the road if you’re vampires.

Yes. Right. So, and I mean, I do want to say that the uncertainty at the time of divorce is a major cause of stress. So, a prenup does give you more control, understanding of what’s going to happen, and likely a degree of confidence that you know how your divorce will go in lieu of, hey, I don’t know exactly what’s going to happen at trial.

Who needs it? Is it just people that are… [Such a hard question.] Bezos, super billionaires? [Of course not. No.] Does somebody who just got out of college, and just got married, and has no kids and no assets… do they need one? Do, you know, does it matter if you have $1 to protect or if you have $100,000 or a million dollars to protect?

Well, let’s do the lowest hanging fruit first. One of the most common prenup arrangements I see, or two of the most common. The first would be a second marriage. So, both parties have a lot of assets. Some may have been acquired in the first marriage. And they just don’t want to deal with the complexity of co-mingling. They’re very separate lives at this point. And so they just want clarity that no matter what they do, their respective estates, their retirement, perhaps their separate residences will stay separate. And I see that very often. That’s one. And number two, I see a lot of family money where we have recurring gifts, access to a trust, or large family support, however that might present itself. There are concerns about does that count as your income for support or does your ex have access to it? But that’s, you know, at the high level, if you self-identify someone who’s on a second marriage or has significant family money, we’re probably talking to you. But I don’t think that’s an all-inclusive list. So, now that I took the easy examples, let me put you on the spot and say, who else? You know.

I would say anyone that just got out of college. I would say young marriages. I would say people on their second marriage or third marriage, right? And let me start off with the young couple. [Yeah.] Right? Just got out of college. I doubt they have positive assets. [Of course.] I’m sure that they don’t have significant cash flow at this time, but when you do this, you’re thinking about the future: 10, 15, 20 years from now. So, I would say even if you don’t have any money, if you don’t have any assets, and you’re debt-ridden at this point, think about the future. Right? And doing the pre-nuptial agreement for these young folks is very important because it gives them that predictability in the future on how to avoid arguments, or how to resolve differences while you’re on amicable terms. [I think it’s very smart.] So, I think that would be the one group, right? The young couple. What do you think about the person going through their second or third marriage [All the times]?

I just think that if we know what we want to keep separate, that’s a good starting point. And if there’s a good basis to keep it separate, all the better. Especially, this may sound a little crass, but if you spend a lot of time in divorce court, you’re on your third marriage, just make it easier on yourself, you know, like take some stress out. Let’s assume this one’s good, but just in case, do the agreement. You’ll probably save a lot of time and stress. And it’s nice to know that everyone’s on the same terms. I think one of the things that a prenup does, ideally, is it forces conversations about difficult issues like: “Hey this is great. Everyone’s getting along but what does it look like if we’re not getting along or things aren’t so great? And could we agree on how to resolve that, or if not, how to separate?” And the prenup kind of forces that conversation when tensions are low like, Marvin, like you mentioned. And I think it’s a good way to kind of dive into these more difficult topics. Not that I think everyone should go and have difficult topics tonight with their spouse but, you know, the things left unsaid sometimes can be significant and it might be better just to air it out and have those frank talks.

I think the important thing to gather from that is: prenups are relevant to everybody and anyone. There’s no prenups are just for people who are very wealthy, or people who are looking to go university and expect to do well, or people that are in their second third marriage. It can be anyone that needs any form of predictability, any form of protection, any form of stability, and perhaps peace of mind because it does give you some peace of mind to an extent.

It does. It does. I’m going to say all bad things about prenups later in this video about the pitfalls, but if it’s done well, I completely agree with you. It’s taken out a lot of the anxiety and uncertainty in this process. And I do agree it’s good for anyone.

So, prenups are not just for certain people. Prenups are for everybody and anyone looking to create protection and to have predictability in the future. It’s just forward thinking.

Let’s talk about what a prenup can and can’t do because I said, “Okay, you guys need a prenup.” And we end the video, they’re going to say, “Oh, that’s great. We need a prenup, but for what?”

The prenuptial agreement cannot include anything regarding parenting time. It cannot resolve, or address, or impact channel support. [Nope.] It cannot be done under duress, and we’ll get into that, and it cannot be unconscionable. [Right.] We’ll address those particular things. That’s generally, sort of, the big topics that prevent the [a hundred percent] enforcement of a prenup. So, it seems that the only things that you can’t do are very finite and limited, which then leads us to: what can you do?

It’s huge, isn’t it? [I think it’s infinite.] That’s where I get freaked out.

You can add everything and anything under the sun in this universe and any black hole, right? Whatever it is, and include it into your prenuptial agreement. Now, what that means is you can create a sunset clause, which determines when the agreement becomes void and null and no longer effective after X period of time or upon certain conditions. You can create an agreement that either party waves maintenance. [Mhm.] Even if you’re both educated and working now and 20 years from now one person decides to be a stay-at-home parent. You can resolve that, and therefore if 20 years from now you’re making $50 million a year and the other person’s that stay-at-home parent, they could potentially be SOL, right? And and no maintenance.

That’s so… that is a great example of one of my big concerns, is spousal support waivers, because it presumes that the current dynamic, the current income disparity and career statuses of the people today will continue in some kind for the next several decades without interruption or variance. That does happen, right? But I don’t know how often. And so complete spousal support waivers kind of presume both people will be able to support themselves. And what that also presumes that no one gets very sick. No one leaves the workforce for child care duties. No one’s family pulls them out for family care. No one has to relocate or lose their job due to AI or technological changes. That the companies they work for don’t fold there. It’s just they’re big bets. And sometimes they’re right. There’s a lot of couples who that decision is right for—the waiver of support—but it’s not for everyone. And that goes to the unintended consequences.

That’s interesting, right, because you are making a lot of assumptions based on your current circumstances and the courts do uphold that. [a hundred percent] They uphold it because they say you had full disclosure. [Yep.] You were of sound mind. You weren’t forced into the entry of this document. Presumably, you understood it [hopefully], or you were given proper advice. And what’s interesting is, Josh, that even if you did not secure an attorney at the time that you signed that agreement [Mhm.] the courts said “well, you had the opportunity [exactly] to obtain counsel and get proper advice and you chose not to do it on the assumption that you understood its terms”. And so, if you sign it and later on you get divorced and there’s a waiver clause, it can be held valid.

The thing I also want to say is that prenups are modifiable, right? So, you can go with your partner and you can create an addendum, a signed addendum. Typically, the document itself will say how to modify it, but a written signed addendum almost will always work here. But verbal agreements aren’t going to hold up. So, you’re, you know, like in your example, you say, “Oh, I’m going to leave the workforce and take care of the kids.” Okay, we’ll figure it out later. We’ll figure it out later. Well, the relationship deteriorates. You never figured it out. You go to divorce court, you say, “Well, I had all these assurances. This is my thinking and understanding.” The prenup governs. And so that arrangement that you entered into, which no longer really fits your life, is still the governing standard. And that sort of stuff drives me nuts. I love sunset clauses. I love things which may help the parties adjust the terms over time. I’m hard-pressed to think of arrangements that I could create today that I’d want to strictly apply to my life in 20 years. [Mhm.]

So, you know, one of the other things that prenups are also important for is to protect non-marital assets. [Hugely important. That’s one of my favorite uses of it.] And it’s various iterations of it, right? Such as, if you sell a property that you had before the marriage and buy something else, right? Does it lose non-marital identity if you buy it during the marriage? No. If you’ve, if there’s cash flow resulting from your non-marital assets, [Huge issue.] you protect that. [Yes.] If you, shall we say, inadvertently put the non-marital property in a joint name [Inadvertently?] Yeah. [laughter] Does it lose non-marital identity? And you can create language in the agreement that still protects it [Mhm.] regardless of its change or transmutation. Right? To ensure that it always traces back to its non-marital asset. [One hundred percent.]

You know, it kind of goes back to my light touch concerns. What I really want to do is protect the things that need to be protected, strongly and firmly, but I don’t want to guess too much. If we’re not sure about where life’s going to take us, let’s do the stuff we know for sure will add value. You can always, you know, amend it later. Um, but really, I mean, I think that, you know, I think it’s going to be creative. I think it’s going to be light.

So, I want to talk with you about enforceability. [Sure.] Okay. So, you know, we talked about disclosures and we talked about some of the contractual concerns we have when drafting, including duress. Duress, I think, is a common complaint in prenups. You hear it a lot because when you have that full disclosure, you have the attorney, you’re kind of pinned. And so, one of the few things people can grasp for, and almost never works, is claims of duress. So, what does duress look like in a classic example for the signing of a prenup?

I think duress really is very limited. And the very limited circumstances that the argument of duress has succeeded is when someone was not given fair notice of the agreement. [Mhm.] When you’re walking down the aisle and it’s presented to you at the last minute without an opportunity to discuss, [Yeah.] negotiate, counter or understand the terms of the agreement. And that almost never happens because there’s always plenty of opportunity, there’s always ample time that it’s being presented. So, it’s very rare that you find a prenuptial agreement undone, as long as you had sufficient notice to review it and it wasn’t provided to you literally at the very last second that you’re walking down the aisle. Under those circumstances, the court would say that’s duress. You were forced to do it. You had no choice. Under circumstances where you’ve had months, years, weeks, days to review it and were aware of the concept of a prenup—that’s not considered. The one that is concerning is the term unconscionability. [Oh god.] What does that mean? Right? Because that’s so subjective.

So my understanding, let’s see if I can pull this from my head… An unconscionable agreement is one that’s so lopsided or disproportionately favorable to one party that no person in their sound mind would agree to it. I believe unconscionable terms also don’t have to favor one party, they can just be draconian in nature. But I believe it’s a reasonable man standard on this.

But what happens if you review the agreement and you had counsel to review it, right? How does the court then determine that it’s unconscionable?

It gets a little bit harder, I think, and I think the unconscionability argument kind of goes hand-in-hand with a disclosure argument. I think if you’re fully advised and you know what’s happening, you have an attorney, you get a chance to negotiate and edit, the unconscionability argument becomes a little bit tougher. So, I can’t say I’ve seen that land very often, but I’ve seen it raised more than a few times.

I’ve seen it raised a lot. I’ve seen the duress argument raised a lot. I’ve never seen one be successful in those arguments. I’ve never seen someone say, “Yes this person is getting 90% of the marital state and there is a waiver of maintenance and therefore it’s unconscionable.’ The court has said, “Well, they reviewed it. They disclosed it. They understood it. No one was forced. There wasn’t any duress.” Right? He made full disclosure of all as he or she made full disclosure of all the assets.

Prenups. The importance of it. Right. It’s for anybody and anyone that’s looking for some level of certainty. [Yes.] And their future, whether it’s protected non-marital assets, i.e. assets that exist before the marriage. [Mhm.] And you want to make sure that it never loses its identity in the future. It’s for addressing and resolving issues in the future of potential maintenance, division of assets and how they’re going to be divided, or reservation of those assets because we never know what path we’re going to go down to. [A hundred percent.] Who is it for?

I think it’s for all those people. I think it’s for, like I said earlier, I do think it helps a lot with subsequent marriages—second, third, fourth, fifth marriages. I think it helps a lot when you have family money, you have family support, trusts or other things you want to exclude from the marital estate, other sources of non-marital income you want to maintain control over. Or, you know, like Marvin said, you just you want some certainty. You’re starting out, you’re terrified of divorce, you certainly can’t afford the litigation, and so you’re not looking to keep something that’s not yours. You just need some clarity as to how it’s going to go down. And I think it’s also a wonderful tool to get as creative as you want to [Yes.] get if both parties are amenable to a creative solution. Whether one person wants to get more than they potentially can get in a divorce case, or whether one person is willing to accept that creative solution that the other person presents in exchange for something, and not just giving away the horse and cart. [A hundred percent.]

Okay. Well, thank you for everyone for watching. All right.

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