COLUMNS: POST-NUPTIALS

by Kelsey Eisen

01_Marriage and finances_a.jpg

As an urban millennial in my late twenties, I’ve gotten to the point where the topic of marriage is officially unavoidable. Half of my friends are married or engaged, and the other half, punch-drunk from back-to-back summer weddings, are finally finding themselves forced to seriously consider The Institution. Nothing emphasizes the reality of adulthood like watching someone you once saw smoke weed out of a potato vow to be legally responsible for another human being for the rest of their life.

Witnessing that kind of thing can be stressful for a normal person (see: the plot of 30% of Sex and the City episodes), but as a lawyer working in family law, the ulcerous anxiety of watching my lovely, idiotic friends naively enter legal contracts of immense gravity is more than a couple champagne toasts can drown.

Incidentally, one way to sum up working in family law: I exist in a zombie apocalypse hellscape of dead relationships; technically “amicable” splits, explosive divorces, ill-fated, ungloved nights of passion resulting in 18 years of legal bickering—these are a few of the ways the groaning, decaying corpses of love lost, reanimated by legal conflict, make their way to my office.

While this conflict can often be extremely serious, it’s just as likely to be extremely petty. I take calls from upset clients who just want to vent about their ex, and don’t seem to care that we bill about three times more than a therapist. I spend days working through whom gets custody of the tubercular 16-year-old cat. I see trials on minor visitation issues go on for weeks, racking up hundreds of thousands in legal fees, with the option of “get in a room and talk it out for free” being summarily ignored by both parties. Even factoring out all the domestic violence and child abduction, working in family law can give a person a pretty bleak outlook on romance.

True, I was never much of a romantic to begin with. The biggest family feud I’ve ever gotten into involved getting yelled at on Christmas for my running commentary during Love Actually. But my professional experience has now thoroughly convinced me that nobody understands what the fuck they’re doing when they get married. If I had to make a film about lifelong romantic love, it would be called, “Legally Binding Contract That’s Really Fucking Serious, Actually.” All I can think about when I help a friend brainstorm wedding hashtags is which client’s doomed love story most resembles theirs, then take bets with myself on when this whole thing will inevitably implode.

While it’s easy to write off my saltiness about love as a result of my profession, I would argue that working in family law has actually had the opposite effect. I love relationships even more now, because I appreciate their fragility. I want to protect them like the beautiful, delicate little seedlings they are. I don’t think all relationships are doomed; I just think they face a lot of challenges. If you’re trying to grow a rosebush, would you plant it in sand in a dark shed? Obviously not. For me, being legally proactive and cognizant of the reality of the institution of marriage isn’t a way of killing romance; it’s a way of giving it a fighting chance.

Consider this: one night I was getting ramen at a shiny new spot in a contrastingly disgusting area of the Mission in San Francisco with—who else?—some of my late-twenties millennial girlfriends.
The topic of pre-nups came up organically, somehow, and the variation of opinion on the topic was fascinating. My one friend was appalled (serious boyfriend, no ring)—how could you enter a lifelong commitment discussing the possibility of someday pulling out of it? My other friend (recently married, ethically-sourced opal Catbird ring) responded that of course she had a pre-nup. She’d never considered not getting one.

Granted, this friend had just married a man ten years our senior, who had been divorced before, and who she had been with for over six years, so her more practical approach to marriage made sense. However, when pressed as to why she did it, she said simply, “Do you know how much a brain injury can change a personality?”

The simple brilliance of that rationalization has stuck with me to this day. No matter how much you think you know someone, no matter how undying your love, it’s still 100% within the realm of possibility that they could bonk their little heads in a car accident and wake up a completely different person. There is, sadly, nothing in this world—including the strongest of romantic loves— that is not ultimately under the thumb of the cruel god of random chaos we call Life.

Which is just one more reason why I’m increasingly excited about the burgeoning popularity of a contract most people have never heard of: the post-nuptial agreement.

While less famous than its Yeezy-endorsed counterpart, post-nups operate in much the same way, but with one large difference: you can make them after marriage. As in, you can make it once you’re fully aware of the shitstorm that is becoming legally one with another human being. Why is this so important? As a lawyer practicing in California, I can tell you that it is at once a wonderful and terrible place for family law. On the one hand, all of the weird law coming out of Hollywood sets a lot of fun precedents. Plus, California has the laxest ethical rules of any state when it comes to having sex with your emotionally vulnerable, recently-divorced clients (lawyers set those rules, by the way, so perhaps the leeway here is a product of some particularly hopeful Hollywood attorneys). On the other hand, California also has community property—a legal concept that is just as complex and boring as it sounds—which can bite you in the ass real hard if you’re not prepared for it. The basic gist is: once you’re married, half of anything you acquire from that point on legally belongs to your spouse.

This might not seem like a big deal within a relationship. Sharing is caring, after all, and you’d expect married people to have similar expenses. But exercising the option to protect your assets can be hugely important down the line. Consider this: let’s say you met your husband when he was a young, fun, free-wheeling business bro. Your eyes met across the bar during SantaCon and it was love at first body shot. You’ve got a great relationship, and all of a sudden it’s twenty years later. Your beloved Grant is still working in finance, and the stress is getting to him. He doesn’t party any more, but he doesn’t drink less. One day he drives home drunk in the pale light of dawn, hits a barely perceptible Eric Trump with his Tesla, and now has a multi-million dollar settlement awarded against him. Guess whose money could be on the line for that? Yep, yours.

And the odds that you thought about that possible scenario as a 27-year-old browsing naked cakes on Pinterest for your Gatsby-themed nuptials? Slim to none. 

This is a situation where an existing pre-nup would have been ideal. You could have made an agreement designating all of your future property and income as yours alone, freeing your husband to smash up as many chinless moguls as he’d like without endangering your assets. While the community property rule seems harsh, the good news is that it’s fairly easy to combat with a nuptial agreement. The 50/50 rule is merely a presumption: that is, it will only be imposed by the courts if there’s no previous agreement to which it can defer. In other words, a nuptial agreement can nip all that noise in the bud. The parties can agree to keep all their property separate, to never merge finances. They can agree to burn all their assets in a cathartic desert bonfire upon dissolution of the marriage. Barring provisions controlling personal behavior (so, sorry y’all, no mandatory sexy time clauses—that’s a violation of the 13th Amendment, aka technically slavery), anything goes. As long as the potentially disadvantaged party gives informed and voluntary consent, the community property presumption can be completely negated. Easy, right?

So why don’t more people do it?

There’s a lot of potential answers to the question—expense, goonish romantic idealism—but whatever the reason for not getting a pre-nup, the good news is that a post-nup is always an option. While it seems like it might be even more awkward to bring up a nuptial agreement during a marriage, the truth is that a post-nup has a great capacity to save a relationship. Once the cold-shower of a reality check that is mortgages and medical bills kicks in, an official plan for running a shared household becomes a lot more appealing.

For example: let’s say you met your husband when you were 25. You were in the same Burning Man camp, and at 28 you got married barefoot in a wheatfield under a canopy of thistle and driftwood. Now you’re 45. Your ability to throw awesome parties under canopies of thistle and driftwood have earned you a great career as an experiential event curator for corporate retreats.You’ve since bought a house, you have two beautiful children, and you’re still madly in love with your husband.

However, your marriage is now on the rocks.You love Glen, your loins flame when he plays his dusty ukulele, but he’s starting to stress you out. He’s on his ninth start-up, and you’re pretty sure this one will fail too. Since you bought the house with income you earned during the marriage, it’s half his. You’re worried about losing it, as well as little Sequoia and Agave’s college funds. On Glen’s end, he’s upset that you’re not supporting his dream, and hurt that you don’t have faith in him. What to do?

A post-nup is a gorgeously succinct solution to a situation like this. You can tell Glen that you believe in him, but the looming possibility of financial strain is just too anxiety-inducing. You can describe the post-nup to him as essentially a back-up plan for later, but mostly a nerve-soother for you for the present. You can get the house declared as your separate property, and do the same with your children’s college funds. You can protect any future income from being on the line for his possible debts.

And now you can go back to blindly supporting your husband like you did when you were both penniless 20-somethings, full of dreams for the future, and utterly lacking in the life experience necessary to realize how improbable those dreams are.

When it comes to nuptial agreements, the best way to think about it is like birth control: it’s not a damper on romance, but a facilitator. It’s there to take away the stress that comes with the possibility of shit getting too real, and let you get in the mood without the anxiety of reality. Because really—what is romance if not mutual delusion?

And if you’re still convinced that a legal contract has no place in a marriage, well, you’re being a little dense—marriage IS a legal contract. If you can’t talk about stuff like money and power
of attorney and all the unsexy things that make up adult life, then marriage just isn’t for you. Seriously. I promise that you are about to be in the 50% of people who take the plunge and can’t hack it. Find another way to cement your love. Get matching tattoos. Raise a puppy. But don’t get married. You officially can’t handle it.

And if you do get married—look me up in ten years. I look forward to hearing all about it, and billing you $500/hour for the privilege.

01_Marriage and finances_b.jpg

Written by Kelsey Eisen 

Illustrations by Paula Castro