Guiding Premarital Conversations about Money

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By: Justine Borer, Esq.

Newly admitted attorneys who work at firms focusing on matrimonial law receive, as a matter of course, requests for advice from clients who are considering marriage. In these situations, it can be helpful for the attorney to provide some basic, limited advice about practical steps a client may take to ensure that s/he and his/her potential spouse have reached a meeting of the minds about finances. Of course, in many cases, it will be appropriate and prudent for the client to seek the advice of a financial planner or other financial professional before marriage, in addition to seeking the advice of an attorney.

The first piece of advice a newly admitted attorney may give to the client is simply to engage in a conversation about money with his/her potential spouse. Many couples avoid conversations about money before getting married. Yet in O'Brien v. O'Brien, 66 NY 2d 576 (1985), the New York State Court of Appeals defined marriage as an "economic partnership." And issues regarding money, or poor communication about money, frequently cause problems in marriages.

It can be helpful for newly admitted attorneys who quickly become accustomed to frank discussions about money and financial issues to understand why clients might resist conversations about money with potential spouses. There are many possible explanations for why a client might sidestep conversations about money before getting married, including:

  • She believes her financial position is straightforward and does not require discussion.
  • He dodges many topics that would be best discussed before marriage, such as views about having children and plans to continue (or discontinue) working outside the home.
  • She believes that spending (and saving) habits will change over the course of a marriage, as income increases, making premarital conversations about money premature.
  • He believes that conversations about money are unromantic and that marital finances will naturally fall into place.
  • She is a poor communicator, or feels she lacks the skills to have these kinds of conversations.
  • He was raised not to talk about money, and views conversations about it as gauche.
  • She bristles at the idea of having to justify her financial habits to another person.
  • He is dishonest about his spending habits before marriage, and avoids frank conversations about money because he does not want to reveal how he plans to spend money after marrying.
  • She is quite concerned about her future spouse's financial habits, but is hesitant to bring up the issue, lest a discussion rock the boat.

All of these reasons for avoiding money conversations are common, some more so for younger couples. Many of the reasons are understandable, even for attorneys, who discuss financial issues as a matter of course. But an attorney should artfully underscore to his/her client that none of these reasons fully excuse the failure to have conversations about money before entering into an economic partnership. If a client approaches an attorney for advice about what to do before getting married, the attorney should emphasize that people who plan to marry must have at least one frank and detailed conversation about money before marrying.

Many newly admitted attorneys may believe that the process of preparing and executing prenuptial agreements provides couples with sufficient opportunity to discuss money before marrying. Unfortunately, this perception overestimates the kinds of discussions and information exchanges that prenups actually tend to require. To be sure, prenups can be a good way to begin conversations about marital finances. In New York State, the best practice is to include in a prenup a schedule of each party's assets and liabilities, meaning that each member of the couple will, at minimum, have a clearer picture of the other member's financial position. Prenups also spell out which assets are intended to be separate (that is, will continue to be the sole property of the spouse who entered the marriage with them, even after the marriage) and which are intended to be marital (the joint property of both spouses, and subject to equitable distribution at divorce). Prenups also force couples to consider the issue of financial settlement at divorce.

But it is important for newly admitted attorneys to know that prenups are by no means a panacea. Those who want to avoid talking about money before marriage can skirt the issue even if they execute a prenup. These agreements typically do not contain language about financial habits and values. During the process of the drafting of a prenup, a man may learn that his potential spouse has substantial assets, but he may not learn how s/he plans to use or manage his/her assets. A woman may learn that her potential spouse has significant debt, but she may not learn the speed at which s/he plans to pay down the debt. Prenups may provide the starting point for more nitty-gritty conversations, but, for many couples, negotiations about the terms of the agreement itself may be the sum total of pre-marital dialogue about money. For this reason, an attorney who is approached by a client considering marriage may want to do more than simply advise the client to execute a prenup.

So what additional type of counsel may a newly admitted attorney offer to a client who wants to have pre-marital conversations about money, and does not know where to start? The attorney may want to turn to a document that is required to be filled out and submitted to court in contested divorces in New York State: the Statement of Net Worth. This 25-page document, which can be found on the New York State Unified Court System website (, requires declaring monthly expenditures in various categories, including housing, utilities, food, clothing, insurance, medical, education, recreation, taxes, financial obligations to former spouses and children from former relationships, loan payments, and business expenses. The Statement of Net Worth also requires declaring income, assets, and liabilities. After familiarizing him/herself with the Statement of Net Worth, the attorney can provide the client with an overview of the categories and types of expenses, assets, liabilities, and incomes that he/she may want to discuss with his/her potential spouse before marrying.

It is possible for a newly admitted attorney to provide more specific guidance about financial questions couples should explore before marriage, because they are common sources of tension after marriage. Many of the questions are most applicable to younger couples, and some are more applicable to older couples.
Questions that all couples should ask each other:

  • What kinds of financial decisions am I comfortable with my spouse making on his/her own, and what kinds do I want to discuss?

  • Which of my current expenses would I be able to give up without too much pain, and which would be difficult to part with?

  • If my spouse has significant assets, how do I view my role in drawing on those assets after we marry (and vice versa)?

  • If my spouse has incurred debt, what do I believe is my share of the responsibility for paying back that debt after we marry (and vice versa)?

Questions primarily for younger couples:

  • In general, what mortgage terms would be acceptable to me? Would I feel comfortable buying real property if I only had enough money for a small down payment? If not, how much of a down payment would I need to feel comfortable buying real property?

  • How would I feel about incurring joint credit card debt? Is there a maximum amount of debt I would be able to incur before the debt caused anxiety?

  • Do I plan to work outside the home after the marriage? If not, under what financial circumstances (if any) would have to occur before I would be willing to change my mind?

  • How much do I plan to save for retirement? How do I plan to save for retirement?

  • How much do I plan to save, more generally? Will a certain portion of my income be earmarked for savings, and if so, approximately what portion?
  • Do I want to have children? If so, under what circumstances would I consider sending my children to private schools?

Questions primarily for older couples:

  • What are my financial obligations (either legal or informal) to ex-spouses and children from previous relationships?

  • How do I anticipate dividing expenses with my spouse after marriage? If I am relocating to my spouse's home, what is my responsibility regarding the maintenance of the home (and vice versa)?

  • When do I plan to retire? How much money will I expect to have saved by retirement? How do I anticipate that my habits regarding spending will change once I retire?

  • How will my estate be distributed at my death?

These sets of questions are by no means exhaustive. But the answers to them can be revealing. If a couple fundamentally disagrees about the answers to many of them, at the very least, the couple should discuss the questions further to try to reach some kind of consensus. Even spouses who love each other deeply may find it unbearably difficult to maintain a marriage if, for example, one spouse is not comfortable maintaining credit card debt, the other is comfortable with significant credit card debt, and credit card debt has begun to accumulate.

Because of their limited experience, many newly admitted attorneys are quite concerned about providing legal advice, and with good reason. But it is possible for such attorneys, without overstepping their bounds, to provide basic, limited advice about how to discuss finances to clients considering marriage. A client considering marriage may benefit immensely from a brief discussion about his or her planned marriage with a newly admitted attorney, if that attorney understands the importance of potential spouses discussing finances before marriage, the reasons why clients might resist such conversations, the prenup's limitations in facilitating those conversations, and the value of couples disclosing incomes, assets, liabilities, and expenses, and addressing specific financial questions, before marriage. In turn, the awareness of this information can only help a newly admitted attorney to practice law.

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This page contains a single entry by Justin Batten published on April 19, 2019 8:00 AM.

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