Plan for the Worst, Hope for the Best

If there is one thing we all have drilled into us in law school it is this: plan for the worst, hope for the best.  Obviously those of us that finish law school are armed with something extra that non-lawyers lack: the ability to build into legal contracts provisions to minimize the damage in the event things do not work out.  It's not that we are hoping there will be any issues, it's just that we've seen (or read about) too many situations that fall apart, and when that happens, we would prefer to reduce the uncertainty of how to handle a bad break-up, either in the business world or in someone's personal life.

Most of my law school friends actually went the corporate route, which is far more lucrative than family law.  But I've always enjoyed working with individuals on a personal level, and ever since I was a child I craved to understand family dynamics-- how they are formed, how they fall apart, and how we can restructure them.  As people have told me their stories throughout the years, I've formed  visuals in my head, which I'm able to fast-forward to the end and play out different scenarios-- some with happy endings, some with not so happy endings, then I'm able to work backwards from those and try to find ways to prevent the really bad outcomes.

Now, since June weddings are around the corner, and my prenup consults are on the rise, let me just point out 3 things to consider if you are about to tie the knot:

1.  How much are you willing to leave open-ended?  While I realize that those planning a wedding are not thinking they'll ever be part of the 50% that won't work out, I'm not a fan of those odds. At least when I'm drafting a prenup, I can cap the risk of paying extended and outrageous sums of alimony, remove some of the potential fights over property division, including what do we do with the martial home, and I even ask for mediation or Collaborative meetings prior to having anyone file anything publicly with the courts.  Isn't that peace of mind worth considering for far less than what you will spend on flowers for the big day?

2. What happens upon your death? No one really wants to think about death, but we all know that is inevitable, so why not set up estate documents and life insurance policies that will spell out exactly who will get what when your expiration day comes along?  Prenups can include provisions that require you to set up these documents so later on you shouldn't have any fights about these things.

3. If you later on write a book, invent something or open a business with someone else, don't you think others would like to know that in the event that your marriage goes south they won't have to worry about some pissed off spouse trying to get a piece of the action?  You can be as stupid as you want to be when you're in love, but it's not fair to jeopardize the financial stability and privacy of other business partners-- and this is precisely why so many partnerships and family trusts now have clauses that require partners to have either prenups or post-nups (that latter is for those of you who procrastinate too much and therefore wind up doing the agreement after the wedding).

Love & money don't have to clash, but one is quite irrational, the other is just so much more logical.  My job is to try and make sure the two don't collide but rather have a peaceful coexistence.  I just fail to see any downside to putting something in writing that spells out who will do what, who will get what, and how things will be handled in the event either party decides to call it quits.   It's far easier to do this when everyone is getting along and wishing for nothing but happy days ahead then later when all is not love and roses.

Prenups used to be for the rich and famous, but that is really no longer the case, although it still only appeals to a specific part of society, and I'll tell you exactly who that is-- it is those that are risk averse and like having their ducks all lined up in a row.  The average American will never even listen to what I have to say about a prenup, and that's not surprising given that less than 33% of Americans have an emergency fund and only about 25% will complete college with a Bachelors Degree.  Those that do are the ones that will take the time to prepare a Prenuptial Agreement, set money aside for a rainy day, and they will meet with professionals to do their estate and financial planning way before a crisis situation ever arises.  As a result, when that perfect storm hits (and I promise in life we will all get hit by a perfect storm at least once), they are far more likely to weather the storm just fine and be okay versus those that opted not to plan ahead.

To all of you about to exchange your vows, the romantic in me is wishing you nothing but the best, but the pragmatic lawyer in me is hoping this blog gives you a little better understanding of why you need to think a bit more like my kind and plan for the worst while hoping for the best.