Do Tiger and Elin have a prenuptial agreement? No one is saying. However, agreements that determine what share of a large estate each spouse will receive in the event of divorce are common, especially when a person of modest means marries someone with considerable wealth.
Are these in everyone's best interests? Often the wealthy spouse or his family has the agreement drafted by their lawyer(s). The future spouse with modest means has to hire a lawyer to review, advise her and negotiate an agreement that fairly represents her position. This future spouse probably lacks the financial resources that the wealthy future spouse possesses. She may also have such faith in the wealthy spouse and his family that she will not want to oppose their wishes. These agreements are generally weighed in favor of the wealthy spouse.
How to make them fairer.
1. Allow enough time to really consider and negotiate the prenuptial agreement.
The timing when the agreement is presented can add to the inequity of your position. I have represented a number of future spouses who have received the prenuptial within 2 weeks of the wedding (or waited to confer with a lawyer). All the preparations have been made and the expectations are set. The modest means future spouse is unlikely to say that she will not sign the agreement unless the agreement is made more favorable to her. Even when one spouse does not have sufficient time, the courts often uphold these agreements. As soon the agreement is presented, get yourself a good attorney.
2. Carefully read the agreement and get help understanding what it means.
It is often painful to read the agreements because they appear so cold and businesslike. Much of the romance and love you feel for your future spouse is absent. Many future spouses find them really difficult to read. There is a good deal of denial that the person you love and are committing your life to would present you with such a document. Get an attorney as quickly as possible to review the agreement and discuss it with him. Waiting until shortly before the wedding makes it more difficult to deal with the agreement.
Work with an attorney who has Collaborative Practice and Mediation training; who will likely attempt to negotiate changes to the agreement that you both can accept without ruining the relationship between your future spouse and you. Also, be prepared to say that you will not sign this to your future spouse. In all likelihood, he does not intend to call off the wedding either.
3. Consider all the options.
No one has a functioning crystal ball. It is difficult for either future spouse to accurately predict their future. Most people measure the fairness of the agreement according to their current circumstances. They have trouble envisioning life when they have children or when one of them has stopped working after children are born because the family does not need two incomes. Frequently, the modest means spouse is asked to give up her right to spousal support or alimony in these agreements. The child support the wealthy spouse is obligated to pay may be inadequate for the modest means spouse to provide the child with a similar life style to what the wealthy spouse can provide their child. If the modest means spouse has given up a career in order to travel with the wealthy spouse during the marriage, she may be handicapped in returning to the work force years later.
These agreements generally do not give a modest means spouse more money in the event of misconduct by the wealthy spouse. She may have waived her right to claim a share of the wealth that was built during the marriage, because much of it was based on the property or a profession that existed before the marriage.
Listen to your attorney when she points out the risks you take in signing the agreement as drafted and be open to revising the agreement to meet your needs. Your future spouse may not understand that agreement either, particularly when it was drafted by his family's attorney. He may not intend the draconian provisions that are in the agreement. If he does intend them, then you need to take a harder look at the person you are about to marry.
Such agreements can provide protection to both spouses if each is represented by experienced counsel and the parties have the time to carefully consider all of the provisions in the agreement. Most importantly, the couple has to be willing to consider what is needed by each party to feel heard, trusted and cared for during their marriage. With experienced counsel and frank discussions, you can achieve a balanced, fair agreement.