The first few posts in this series discussed when prospective spouses should sign a premarital agreement. Simply stated, a premarital agreement should be signed when both parties want to apply different rules to divide their property and award support after the marriage than the law would otherwise provide.
In a perfect world, all prospective spouses would agree on this issue. But the world being the imperfect place that it is, prospective spouses sometimes disagree. This post will address options available to the spouse who wants an agreement when the other spouse refuses to sign one.
There is an obvious starting point here: Do not attempt to coerce the other spouse into signing the agreement. We have seen that the single most important factor in determining the validity of the agreement is whether it is procedurally fair. A coerced agreement is not procedurally fair. Don’t use improper threats to force your prospective spouse to sign an agreement.
You can, of course, tell your prospective spouse that you will not marry him or her without an agreement. You are not required to marry anyone, so threatening to call off the marriage is not an improper threat.
But consider carefully your prospective spouse’s likely reaction. You are not required to marry your prospective spouse, but your prospective spouse is not required to marry you, either. Consider also whether an absolute insistence on signing exactly your agreement, on exactly your terms, no exceptions allowed, is an action likely to lead to successful and fulfilling marriage.
If you do not rigidly insist on this exact agreement or no marriage, what can you do instead? A good first step is to listen to your spouse’s objections. Why exactly is your future spouse saying no?
One possibility is that your future spouse simply “does not believe in premarital agreements.” Education may help on this point. Premarital agreements are very common in the 21st century; many happy and successful couples have them. They are especially common after later marriages. Properly drafted, a premarital agreement does not work to the financial disadvantage of either spouse.
If your future spouse is concerned that the agreement may be harmful, perhaps you should look at the terms you are asking for. Have you given your future spouse, as previous posts in this series suggested, a reasonable path to a successful financial future if the marriage ends in death or divorce? If you are asking for a complete waiver of all rights, and your future spouse is not fully independent, your future spouse’s objections may be reasonable.
Another possibility is that you and your future spouse may be thinking in terms of different situations. For example, the husband might want an agreement because he is afraid the wife will leave him after only a few years, as his first wife did. The wife might refuse to sign an agreement because she wants long-term financial security if she spends time out of the workforce having children. It may be possible in this situation to address both parties’ needs with an agreement that gives the wife only modest rights if the marriage is short, but more rights if the parties have several children. An agreement does not have to give the less wealthy spouse everything or nothing; it can be drafted to meet the objectives of the parties. As another example, the wife might want an agreement to protect an expected family inheritance, while the husband might be afraid that the wife does not really love him unless she marries him without an agreement. The second point obviously raises a personal trust issue that the parties need to resolve. The first point could be addressed with an agreement that waives rights only in the inheritance, without waiving rights in other assets. The wife’s willingness to give way on assets other than her inheritance might help reassure the husband that the wife does love him. Counsel can also help in this situation, by telling the husband that his rights to the wife’s inheritance would be limited even in the absence of an agreement.