As a trial lawyer who specializes in divorce work, I can say with confidence that having a prenuptial agreement is no more morbid, crass or unfair, than having a good will, trust documentation, or power of attorney prepared by an estate planning attorney. Just as there is nothing morbid about planning for one’s inevitable demise, it is also wise to consider that, statistically, at least half of us will experience the divorce courts. Like estate planning, a prenuptial agreement is simply another strategy for smart and fair asset protection.
In my work, I am often frustrated by the absence of prenuptial agreements, or even more, by shoddy, thoughtlessly-prepared agreements which do not thoroughly address certain key elements. More on this later, but first the basics:
In a divorce trial involving property, the judge is tasked with three things: (1) characterizing property as marital or separate, (2) valuing the marital property, and (3) equitably distributing the marital estate. Prenuptial agreements are designed to guide the court on (read: simplify) the first and third tasks, characterization and distribution of property.