Hallelujah! The Ohio Season of Love is Blind actually gave us a conversation about prenups! In Episode 11 (15:32), Brittany shares with her fiancé Devonta, who wants a prenup, some very common reasons why people are often resistant to prenups: “I don’t want to be married to somebody who feels like they have to protect themselves from me.” “If I sign that paper, will I be able to not think about the fact that there’s that in the background?” “You have a plan to not always fight for it.”
The conversation ended with no resolution, another unsatisfying end for this family law attorney.
How could this conversation have gone better? What would have helped Brittany and Devonta have a more productive conversation about prenups that would have strengthened their relationship, rather than caused a rift? As my wonderful colleague from the Collaborative family law world, Jill White, puts it, “Boy, this couple really needs collaborative!”
A collaborative prenup is one that is prepared in a very different manner than the traditional approach. In the traditional approach, one attorney drafts an agreement with their client in a silo that is then reviewed by the other attorney and their client in another silo. In the collaborative process, the partners and their attorneys come together in four-way meetings to educate the partners, identify their goals, fears, and interests, and discuss together what provisions would meet their needs. Some couples even bring in communication coaches and financial professionals. Jill calls it the “co-creation” of an agreement.
I talked more with Jill about how a collaborative attorney would work with Brittany and Devonta:
What are the benefits of a collaborative prenup?
In a collaborative process, there’s a feeling of safety, as compared to being presented with an already-drafted, proposed contract. Brittany would have the opportunity to be heard by both collaborative attorneys and they would explore options with both attorneys, together. They would see that the attorneys are there to support their shared values, which may be more aligned than what is shown on the show. In my practice, it is rare that the parties feel that they are compromising. The conversations during the collaborative process are valuable in understanding one another and the attorneys illustrate ways to accomplish what each party feels they need.
How would you respond to people like Brittany, who is worried she’ll go through marriage with the feeling that there is a prenup hanging over her head?
Brittany is reacting emotionally without knowledge of what a prenup could look like, or any knowledge of the default law. Education here is of high value. What are her concerns? I would respond to ‘hanging over her head’ with, ‘Say more about that,” then listen attentively.
At one point, Devonta says, “I know the sacrifices that I’ve made to get to where I’m at. I don’t ever want to lose that, or lose half of that.” How would you have guided the conversation around Devonta’s fears and the implications for Brittany?
I would use the phrase “exploring shared financial expectations.” I did not hear that Devonta is suggesting that his earned income not be jointly shared. I heard that he does not want to lose half of what he has. There’s a distinction. He too needs education.
Because his income is so much greater than Brittany’s it might feel equitable to both that she not acquire an interest in the home that he owns. However, in my experience, some couples want the feeling of “our home” and that can mean building shared equity, even if the title remains in one party’s name. In a recent collaborative prenup I worked on, one party was a homeowner retaining title to the property. He wanted to be generous with his partner by specifying a dollar amount of his separate interest, rather than claiming a percentage of any appreciation on the home, which gave his partner a greater financial stake in what they considered “our home” while still protecting his ownership of the home.
I like this idea. If Devonta ultimately did want to keep his earned income as separate, this could be one way for them to still feel as if they are sharing in something. In another episode, Brittany jokes about sometimes going overboard with shopping and Devonta responds, “But if you run out of your own fun money, don’t come looking in my pot.” How would you address this dynamic where one party doesn’t want to participate in the other person’s spending?
If income is separate, I might put into the agreement that the parties may establish jointly titled accounts and that all deposits into these accounts are transmuted to community property. I discuss opening jointly titled brokerage account to build a financial future together. In one case, where income was separate, we gave a monthly ‘allowance’ to one party which would be her fun money. I would even explore whether Devonta would be open to making an annual gift to Brittany so she can live her lifestyle and build retirement.
What other questions would you have for Brittany and Devonta?
What about spousal support? Would it be addressed in a prenup or left out? Do they plan to have children, and if so, would both of them continue to work? If Brittany is not employed full-time while home with children, and income is separate, would Devonta be willing to fund her retirement? I’ve done cases where, in the event of separation, the husband would pay a certain amount a year for each year that wife was not working full-time, since she did not have the opportunity to build retirement during those years.
I would like to hear more from the parties about their expectations. Does Devonta want to support Brittany such that they share a comfortable to lavish lifestyle while married? Brittany is giving up a lot if she acquires no interest in his savings/investments/real property.
Any final thoughts?
Fear is a base emotion; normal. Feeling financial insecurity can be addressed by walking through projections that illustrate financial futures. Navigating fear comes back to discussing financial goals.
As Jill illustrates, you have options and there are a lot of creative ways to craft a prenup that supports your relationship, rather than one that hangs over the relationship. When co-created in the collaborative process, a prenup can give you the confidence that you've each been heard, respected, and thoughtfully protected as you move forward together. Fear can turn into clarity and defensiveness can turn into shared purpose.
The collaborative process is an invaluable way to explore your future together – If you’re interested in learning more about collaborative prenups or prenups in general, reach out to Bloom Family Law or another collaborative family law attorney!
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