Think Before You Prenup

By Attorney Gregg Herman
September 27, 2012

According to a poll by the American Academy of Matrimonial Lawyers (in which I participated), and reported in an article in the Wisconsin Law Journal,  there has been an increase in requests for prenuptial agreements.

At the outset, I should note that my firm stopped doing prenups many years ago.  There were a variety of reasons but perhaps my late partner, Leonard Loeb, gave the best reason:

“As a lawyer, it is far easier to represent a party who hates the opposing party than one who is in love with the opposing party.”

In other words, lawyers are better at handling hate than love!

Yet, prenups are very important in one circumstance:  Where parties with children (either minor or adult) from a previous marriage or relationship get married.  In those cases, however, it should be an estate planning lawyer who drafts the prenup, not a divorce lawyer.

The problems generally arise where the prenup is designed to protect a party from a potential divorce.  My belief is that if such a prenup is needed, the parties should not be getting married in the first place (OK, call me a romantic…).

For one reason, if the prenup is drafted by a lawyer who does mostly or all estate planning, it often creates more complications in a divorce due to different terminology or lack of knowledge of family law entirely.

In addition, people don’t know their finances – or their emotions – in the future.  So a prenup may turn out very differently than what they expect.

Also – and perhaps most significantly – in many cases, a prenup is just not necessary.  If it’s a short term marriage, the court is very unlikely to divide premarital property equally.   As a result, I have seen several cases where a party trying to protect premarital assets via a prenup would have been much better without one.

So, if you are considering a prenup in Wisconsin, talk to a lawyer who practices both estate planning and family law – or two lawyers, one in each field.

Attorney Gregg Herman is a founding partner of Loeb & Herman S.C. in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.