Is a prenup truly necessary?

It’s always easier to choose cake tasting over drafting up a legal contract with your lawyers and future spouse.

If you’re engaged, it might feel like the easiest thing to do is skip the whole prenup thing altogether. And you’re probably right: it would be easier. It’s always easier to choose cake tasting over drafting up a legal contract with your lawyers and future spouse.

Here’s the thing, though: while we know giving wedding planning your 100% is absolutely more appealing now, not having your own prenup could make things much more complicated, expensive, and emotionally taxing for you later, if your marriage does end in divorce.

Why? Because even if you don’t create your own prenup, you will still have a prenup. It’s just the one written by the state you get married in.

That’s right: When a couple gets married without a written prenup, their prenuptial agreement is to allow state laws to control what rights they have while they are married, and what rights they have when the marriage ends by death or divorce.

So that begs the question—would you rather have your marriage live by its own custom rules, agreed to by you and your spouse? Or, in the case of divorce, allow your state to decide how things are going to go? Those are the only two options, and, while we’re a little bit biased here, we think the former is the smarter one.

Let’s take a look at the state of Virginia, and how two theoretical couples can have completely different experiences with their respective divorces.

Meet the Nguyens. Before they got married, they got a prenup in which they pre-agreed that if they were to divorce, they would split the proceeds of their house 50/50. They unfortunately did divorce, and when they did, they split the proceeds of their house 50/50, because that’s what was written out in their prenup. While their split was painful and stressful for the whole family, they were able to handle their divorce with privacy, respect, and without excessive legal drama.

Now, meet the Bakers. They threw caution to the wind and decided to forgo getting a prenup. When their marriage ended, their fate was in the hands of Virginia divorce law, because by not getting their own prenup, they agreed to let state laws control their rights. And in Virginia, the divorce court decides how their property will be divided up based on a system called equitable distribution.

This is where things get a bit complicated: equitable distribution doesn’t sound like what you think it does (automatically splitting the proceeds of the house 50/50). It actually means the court will split the property between spouses in a way that it decides is “equitable” based on the whole picture of the couple’s financial situation.There are 11 factors Virginia’s divorce court is required to consider when dividing a couple’s marital property, and they can also factor in bad behavior—including whether one spouse was abusive, cheated or committed a crime. Because Virginia’s divorce court is required to consider so many factors, you can see how the Bakers’ legal fees—paid to the lawyers to duke this all out in divorce court—could add up quickly. On top of that, divorce court brings your private issues into the public, which only makes an already emotionally stressful situation more difficult. 

While divorce is never an expected outcome of marriage, it’s better to decide on a prenup, like the Nguyens chose to. Because as the Bakers’ scenario demonstrates, not making a decision is very much a decision—and it can be an expensive one.