Many people who initiate the process of developing a prenuptial agreement with their intended talk about their fears of what happened to a friend or a colleague who had a painful divorce in a marriage without a prenup.
Some of their friends saw a once beautiful marriage end in protracted litigation where there were children of the marriage who suffered along with their divorcing parents. Some expressed anger that they had to equally share all assets earned during the marriage with their spouse in a divorce, even though it was they who earned most (or all) of the money that created the assets. I’ve heard all of these.
I’ve heard these, too – those that read about the percentage of marriages that ended in divorces, especially the percentage that occur before the seventh anniversary of a marriage; they are afraid of what might happen to them if the marriage breaks up after such a short time. Some (as a child or a teenager) lived through a prolonged and painful litigated divorce of their parents that scarred them terribly. (As a result, some of these people hold fast to their own marriages; some are unable to make that ultimate commitment.)
These are legitimate fears – except the one about equally sharing assets developed during the marriage – this is the law in almost every state for good reason. However, the fears of something occurring that may never actually happen may color the entire marriage, and in my experience, negotiating a prenup is never a wonderful and positive experience for either of the future spouses.
Then take the people who will be marrying — people vary in their basic emotional make-up. Some people go through life with a glass-half-full-attitude; some with a glass-half-empty attitude. Some of the underlying reasons may be past history and experiences, or just plain brain chemistry.
Some approach marriage with a Pollyanna-ish glass-half full (or maybe a fully-full) outlook. Pollyanna is the character from the 1960 movie of eponymous title (played by Hayley Mills) of an orphan child who has an irrepressible bent for optimism.(My own spouse of 40 years rightly calls me “Pollyanna” from time to time.)
Compare this with the glass-half-empty future spouses – that person might have many negative tapes going through their head. As a result, they might be very wary of entering into marriage without a prenup in place; they believe that the risk is too high.
Often people who get married with a prenup suffer from “optimism bias.” This causes them to sign prenups that can have severely negative results for them when the prenup actually comes into effect. It always does come into effect,because it does so at the end of a marriage, whether the marriage ends in a divorce or by the death of one of the spouses. (Many prenups also do contain terms for how the spouses will conduct their financial affairs during the ongoing marriage.)
One of the most adverse provisions especially that sometimes occurs in the prenup of the first marriage of relatively young people who plan to have children is a total waiver of spousal support rights. A person may (rightly) think that the only way to get married to the person they love (and who believes loves them) is to sign that waiver; sometimes it is the only way if the request for a waiver is unnegotiable. Or the person may think they will never need spousal support, and anyway, they can take care of themselves.
Another adverse provision that I see people signing off on in a prenup (not the ones that I work on) is a complete waiver of inheritance rights. People shouldn’t fear including Inheritance rights in a prenup because they typically come into effect only if the marriage ongoing at that time. People can change their estate plans an hour before they die, so I think provisions setting forth what inheritance rights are decided to be maintained in the marriage is crucial. (My prenups always have some sort of template for inheritance, even if skeletal.)
If a person signing a prenup may think, “This won’t happen to me.” then this person suffers from “optimism bias.” This overly sunny outlook can lead to poor decision-making. This poor decision-making can have disastrously negative outcomes when the marriage ends.
In one sense, thought, having optimism bias can have benefits.If we expect good things to happen to us, they are more likely to actually happen. Positivity breeds positivity. Negativity breeds negativity. So, if a party wanting the prenup is motivated by their fears of what would happen if there is a divorce, their negativity may make a divorce more probable, especially if there are severe provisions in the prenup that could potentially cause their partner harm.
Optimism bias is more likely to occur if the person with that bias perceives the negative outcome as unlikely, as many people do when they get married. Thinking about divorce terms right before the marriage (as one must do when constructing a prenuptial agreement) is, indeed, a love killer. But people can recoup and go ahead with their marriage, although there might be some scars if the negotiations were brutal. The damage may be fatal if theterms are also brutal.
Some people entering into prenups with adverse terms for them believe that the marriage will remain intact, due to their direct control and influence. Others might believe that things will magically work out.
There are factors that tend to decreaseoptimism bias. A person marrying again after a long marriage ending with protracted litigation may be, understandably, wary of marriage. This is why having a prenup with an Alternative Dispute Resolution (ADR) clause gives peace of mind. It can be a very good reason, standing alone, to have a prenup. Perhaps a prenup lite with just the ADR provision will fit the bill.
People (such as the ones I describe at the beginning of this newsletter) that have heard of negative experiences suffered by other people going through divorces also tend to have lessened optimism when embarking on marriage.
Waiver of alimony in first marriagesis definitely a red flag, as is total waiver of inheritance rights if the marriage is ongoing when a spouse dies. It’s important to evaluate these provisions clear-sightedly and realistically. Thinking about them by imagining hypothetical situations that might occur in the future as the marriage unfolds is an essential process when developing terms of a prenup.
The bottom line is that people entering into prenups need to reasonably balance protections for both future spouses in the provisions of the agreement. It is important that the fears of the marriage-suspicious future spouse are addressed, and also that the overly optimistic views of the other spouse do not potentially drive the provisions into a dangerous direction for that future spouse.. That’s the puzzle for which parties negotiating the terms of a prenuptial agreement and their advisors should ideally find a solution.
So even in the glow of first love, don’t think that “This will never happen to me.” It might.
Laurie Israel ©2026. All rights reserved.