Marriage Agreements: How to Save Your Marriage Before it Starts

This should be an easy concept to understand. “Marriage”, “agreement” – isn’t that what a marriage should be about? Sure, there are millions of married couples out there who will swear otherwise – once they got married, they could no longer agree on anything.

But this caricature of marriage is humorous much because it runs contrary to the idea of finding your soul mate – a partner with whom you can be yourself and yet blend your life with in a way that brings joy to a household. When people decide to get married, or even when they are seeking out a person they might want to marry, their goal is to find much agreement and harmony between them - a degree of independence, yes, but agreement on the important things in life.

Actually, that’s the easy part. Nearly everyone who meets at the end of the aisle sees that moment as a moment of consummate agreement. It’s the person you’re willing to give your entire life to – and you’ll never make a bigger commitment. Or at least that’s the thought. But given that roughly half of all marriages end in divorce, what meets at the end of the aisle as commitment, often walks away from that moment and at some point begins to drift apart.

There’s no magic bullet to prevent this. People do change and nothing you do before the wedding will guarantee you will stay together and be happy for the rest of your life. But would it help if you made it clear to each other what you intended your marriage to be about? What it is for you – for the two of you? Or here’s another question - could it hurt?

Wedding Vows and Commitment

Fifty or sixty years ago, when an American couple would say, “till death do us part”, there was a general expectation that it was all that needed to be said. Getting married meant spending the rest of your lives together. There were other vows, but there were no other terms. Spending their lives together was the entire point of the marriage – rich, poor, healthy, ill – whatever the conditions or circumstances, man and wife would stay together. That was the agreement.

But couples today do not go to the altar with the same expectations their parents or grandparents may have had for marriage. The roles of both women and men have changed, thoughts on having children differ considerably between couples – the picture of a marriage relationship is more dynamic, intriguing and unique than in past generations, but it is also more complex, and filled with challenges earlier generations never felt the need to consider.

Think about this carefully. Today, as many couples write or find unique vows as those who rely on traditional vows. This alone suggests that there is something in the mystery at work within a couple’s bond that makes their “agreement” something that uniquely defines the love and commitment they share.

In essence, male and female are coming together through their feelings, desires and intentions, and in the words of their vows, expressing, expanding and clarifying what they mean by their commitment.

Yet no one really expects to express everything they intend for their marriage in a 30 minute ceremony with five minutes of vows. That isn’t the purpose of the ceremony at all. The effect is merely a residual. The ceremony itself is the public symbol and seal of the commitment. It is sharing the blessing of your union with people you love, and making it “official”.

Married Life Without Agreement

So now you’re married. Both of you have great jobs, decide you want to have a baby, get pregnant, and then, bang – somebody loses a job. Maybe it’s not the job you planned on going away, or maybe you didn’t plan on either going away. Now what?

Job losses with new family members on the way aren’t the only issues you’ll deal with, by the way. How are things with the extended family? If they were great before the wedding, what happens when someone’s Mom or Dad gets ill. Or a brother comes and overstays his welcome?

Finances take many twists and turns as well. Maybe you’re blessed to come into your marriage and find nothing afterward but an upward trending income stream. Most couples aren’t so fortunate – at least not every year of their marriage. What do you do when times get really tough?

What do you do if one of you wants to pursue a career change? Go back to school? Have an extended period of travel when you may be apart? Do you think none of these things will ever happen? You may be right – they may not.

But here is one of the most important bits of data everyone can take with them into a marriage – people change. As little as we like to see our perfect mates change from who they are, we aren’t likely to like the changes we see when they take place. Why would you want the ideal mate for you to become any different?

At the same time, however, you are changing too. So your mate has to put with changes they may not want to see either. The funny thing is that if you’re patient, if you wait just long enough, the changes that come about will make that person even more ideal as your mate. After all, one of the main reasons he or she will change is because of you. People have to adjust in time to their mates.

The changes and challenges that occur in a marriage aren’t necessarily either “good” or “bad”, they are just inevitable. Everything in your lives will begin to change the minute your honeymoon ends. The honeymoon will end, but you still want to be happy.

Married Life by Consent

As a couple, have you spent any time talking about what you really want your marriage to be like? It couldn’t hurt, could it? Surely each of you has your own picture in mind of what that is. Don’t you want to share that with each other as much as you want to share everything else in your life?

Good – that’s a good start. Share it with each other. You may be surprised. Surprised both at things you will gain that you didn’t expect, and about things your new lifemate holds truly sacred. You may have thought you never everything about her/him before.

But maybe there are a few things that still don’t come out. I can tell you from experience that until you are willing to make a bold statement like, “whatever we write down as our own covenant to each other, these are the things I really hold sacred and don’t ever want to give up. Everything else is negotiable.”

Until you actually see those things memorialized that aren’t negotiable, it is reasonable for your partner to assume they actually are negotiable.

For example, maybe she is convinced that the 2000 mile trip every Christmas to the cold, Winter environment where her parents now reside is without question non-negotiable, while he is equally sure that she that she understand that once you have kids, Santa delivers the presents at home, not to Grandma and Grandpa. Then comes that first Christmas with a little one in the house – and suddenly the emotions are more reminiscent of the Fourth of July than Yuletide.

Granted, these “little” differences are each likely to be relatively unimportant to most couples. But it’s an example of a flashpoint – and no matter how well they get along, no matter how much they see eye-to-eye, every couple has its own little flashpoints where conflict turns into standoff – every couple.

So what can you do about these unexpected points of conflict? No matter how honest you are with each other, no matter how carefully you think through your challenges, there will be things that will come up that you cannot anticipate – that much you can anticipate.

Hearkening back to what I said earlier, remember, unless you’ve written it down as a non-negotiable, it is negotiable. And this principal itself should be non-negotiable, so it should be written down. Now we’re getting to the heart of the matter.

“Pre-Nuptial” Agreements R.I.P.

The traditional notion of a marital agreement, commonly called a “prenup” is one between a successful, older business executive, and his youthful trophy bride, and it is typically a one-sided agreement to protect his assets in consideration of his kind thoughtfulness in taking her in as his wife, just in case she later decides she could pocket a piece of his fortune and run off with it, and a young, tan surfer boy. If you detect sarcasm here, it’s because I have a pretty sarcastic view of this type of agreement.

Not that the wealthy fellow doesn’t deserve to have protection for the assets he brings to the marriage – I support him in doing so. What is flawed is that he may think this agreement can be followed by marital bliss for him or the lovely young lady. There problem isn’t the inequality in their age or wealth, it is a view of inequity in how the marriage is being idealized, and in the lack of any plan for success in the marriage document.

OK, now maybe you’re interested. Am I telling you that there is any other reason for a prenuptial agreement other than to plan in case of marital failure? I am. This may seem like a very novel suggestion, but in reality, many lawyers have been advising couples to think of a marriage document as a plan for success for a very long time. Unfortunately, it’s not widely publicized and perhaps even less understood.

To many people, it’s a real stretch to imagine any reason other than planning for a divorce to put a marriage agreement in writing. But ask yourself, if you’ve ever written a contract, ever signed a contract, were you thinking, “we wouldn’t be doing this unless we were expecting this arrangement to fail”. Of course not!

In fact, written documents usually gives people greater security that the intended result will occur. People buy homes and cars, sign leases, agree to buy or perform services, and engage in many other kinds of transactions every day that require their signatures on a written document, full expecting the terms of the contract to be carried out - and never doing it because they are expecting the arrangement to fail. They do this with every expectation that the arrangements they enter are going to be fulfilled.

In fact, with many service agreements, the parties look to the agreement as a guide for what needs to be done. Anyone who has hired an architect or general contractor for building a home can relate to this. You get into the process, and something isn’t going as planned. What do you do? Both parties refer back to the original agreement and then regain their understanding of what was intended.

Yet when it comes to marriage, because of the urban legends surrounding the prenuptial agreement, people think marital agreements are plans for failure. I’ll be blunt here: for any person or couple approaching marriage and contemplating a marriage agreementbelieving that it’s in done in anticipation of a future divorce – don’t do it!

There’s an old saying, “fail to plan, plan to fail”. The corollary is if you plan for failure, your planning will succeed, and you will fail. In other words, if you go into an agreement expecting there will be a divorce, your expectations are likely to be met.

Planning for Success

On the other hand, if you make an agreement expecting to succeed, you probably will. I can tell you the stories of many couples who married at a time in their lives when neither brought significant assets or income into the marriage, and would never have considered any type of marital agreement. Years later, after numerous unplanned twists and turns in their lives, they separated and divorced, and conflict followed them even long after the decree became final.

It would be a very flawed analysis to suggest that merely by drafting a written agreement, these couples would have lived happily ever after. Preparation for a long and healthy marriage obviously involves much more. How well you get to know each other, having good mentors, perhaps some well structured counseling, and truly aligning your intentions and desires – each of these steps is at least as important as any document you can create.

Still, the writing itself adds something to the planning you won’t get from any other source. What is it?

Before I wrap up by answering that questions, let’s first recap what we covered in the preceding pages and note the important benefits of a marriage agreement we’ve already discussed:

1. Your intentions are not entirely clear to your partner if they can’t refer to something you’ve written –in essence, it’s a love letter: “here’s how I feel about you and what I want to give”.
2. The “non-negotiables” in the way you live your life, are merely “negotiables” if they aren’t written down.
3. People change but the intentions you had when you got married can be referred to again and again.
4. “Negotiability” itself should be non-negotiable. It’s imperative that both partners recognize there is a need for flexibility and if you haven’t memorialized something, you should be prepared to adapt as change comes your way. If it helps, the changes you need to adapt to can later be incorporated into your agreement.
5. Writings are designed as plans for success – not failure.

And then we get to the last reason – the one I personally find most important of all.

An Objective Frame of Reference

One point about a written agreement is that, while both of the parties to it will change, the document itself does not. It can change, and sometimes should, if you both come to a point that you want to renegotiate it, but it will never change on its own. The original document remains what it is.

I need to borrow from the context of larger cultural images in order to properly explain this. In the law, different forms of interpretation of written documents are applied in different states, and by different judges. Typically these fall into a couple of general categories.

One of these categories is a strict form of interpretation that references “the four corners of the document”. In other words, read the document itself. The whole agreement is contained within that document. Anything not addressed is not part of the agreement – at least not governed by the agreement.

What makes this so powerful is the objectivity it brings with it. True, even the words contained within a document can be interpreted differently by different people. But the exercise of interpretation is now confined to those words, and they don’t change until the parties to the agreement change them.

I’m not particularly interested in mixing politics into the discussion of marriage (though marriage is certainly a context where politics can be freely discussed), but I think it’s helpful to borrow from a much larger context to help in understanding the value of the written document since most of us have heard of the U.S. Constitution.

This writing has been around a long time. Coincidentally, so have the United States. But is this coincidence or correlation? Almost certainly, it’s the latter.

Whatever form of interpretation of the document you prefer, the fact that it exists and continues to be the frame of reference for our nation’s governance has very much to do with America’s continuity as a sovereign nation. Without it, we would not recognize America as it is. We would be very, very different, perhaps living under a different name and flag, and perhaps having been subjected to complete revolution or division many times over, instead of having the stability our nation has enjoyed for the past 222 years.

Furthermore, though people differ over how we should interpret the Constitution, it is very, very rare to find anyone who takes issue with its protections for their individual rights or any of its other specific provisions.

Yet for the Constitution’s great longevity, it is nonetheless a flexible and adaptable document, having been amended over 25 times in our nation’s history, though amendments seem to have become less and less necessary over time, indicating that the document we have in place must be serving us well.

I am not writing this to evangelize patriotism in any way. I am making the case that a strong, flexible written blueprint, focusing on major themes more than devilish detail – provides an excellent framework for enduring relationships. The American Constitution has proven it is the kind of framework that works for something which lasts and doesn’t easily break apart.

What Works for You?

Ok, enough of the lofty analogies. The bottom line in all of this is what works for the two of you. We aren’t talking here about setting up a country that we hope will last for centuries to come. We’re talking about setting up a family, built around love, happiness and mutual support.

You can do this in whatever manner will work best for you. You may still choose to do it without any kind of written agreement. But hopefully, by adding the important understanding that a very thoughtful written document should provide you with a frame of reference for success in the future, alongside the other benefits I shared earlier, you are now thinking about a Marriage Agreement in the positive light it can be, rather than through all the negative connotations it may have held for you before.

If it makes sense to you, discuss it as a couple. Down the road, you will someday look back on this time and it may turn out that putting a few good things in writing was the thing that helped keep you both on track. Many happy returns…

Andrew J Thompson is an attorney, practicing family law in Indiana. He may contacted via email at ajt@thompsonlaw-in.com or by visiting Thompson Legal Services. You can also find form documents relating to Marriage Agreements at RocketLawyer.com.