Should You Get a Prenup? How Legal Planning Can Strengthen (Not Sabotage) Your Marriage

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Welcome to this week's episode of Doing Divorce Different.

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I wanted to get in here quick and let

you know that my conversation with

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today's guest, Melissa Miro, Slavic,

turned in to a two-part series.

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It's really, really good.

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It's helpful if you are.

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Thinking about divorce or if

you're wanting to not get divorced,

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for both of those reasons today

we're gonna talk about prenups.

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So this is where it matters for you.

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No matter where you are in your

life, if you've never been married,

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she talks through a prenup and

how it can really help you.

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I learned that.

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I really strongly agree with them.

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And then in next week's

episode, we're gonna talk about.

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Post-op.

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So that's something that you do when

you're already married, um, to decide

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what you're gonna do with your finances.

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And I learned a lot and there's lots

of really good reasons to have those.

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So stay tuned for that as well.

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And I'm glad that you're here today.

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Speaker: Welcome listeners.

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I am very excited that you're here

today because we have Melissa Merril

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Slavic, and she's an attorney.

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She was on a long time ago, and

the main thing we're gonna talk

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about today are postnuptial and

collaborative postnup and how sometimes.

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They're used in divorce and

sometimes they keep you married.

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So I'm super excited because

Melissa really focuses on this.

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She does a lot in collaborative law.

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Um, she's gonna kinda share her

career journey a little bit because

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I said I'm so excited for her.

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She has an attorney, she's off on her own.

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And Melissa, I know that that's not easy.

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So I think our listeners would

love to get to know you better.

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And so if you wouldn't mind

just sharing what led you down

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this path and how you ended up.

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Break it off on your own.

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Speaker 2: Sure.

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Happy to talk about it, and I'm

very, very happy to be here.

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Thanks for having me back.

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I, um, I actually became an attorney as

a second career, so I, um, started out my

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attorney life kind of in a different way.

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I had a whole bunch of experience in, um.

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Entirely different business.

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I was a business owner

before I went to law school.

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And when I was in law school I was

introduced to collaborative law, which

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might feel a little bit like an oxymoron.

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Yeah.

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The trained attorneys, uh, we

tend to look at the adjudicative

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process as a tit for tat.

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Who's gonna win, who's gonna lose?

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There's negotiation in things.

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Like that.

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But the collaborative law process

overlay was really interesting to me

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because I feel like it trains attorneys

on how to put the family's goals first.

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Speaker 3: Mm-hmm.

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Speaker 2: And take the family's

interests and how they might want a

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divorce process to go for an example,

what that process should look like.

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And overlays that and sort of removes the

court from the process while everybody

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still has an advocate on their side to

help them through the legal process.

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So that was my introduction

to collaborative law.

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And then when I left, uh, became an

attorney and left the school, I um,

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I started working in family law.

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Quickly joined the Collaborative Law

Institute and I'm on the board there.

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So full disclosure,

that's really important

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Speaker 3: to me.

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Speaker 2: And I also do estate planning.

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And, um, through a series of working

at a couple of different firms, I

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realized that the way that I wanna

serve clients is much more like my

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previous career in client service.

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And so I'm now able to overlay

those two things together.

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I can work with clients the way I want

to service clients, and then I can also

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do this in a collaborative way and be

really, um, a proactive problem solver.

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For people versus a

reactive problem solver.

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So that's why I'm here doing what I do.

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Speaker: I love that, Melissa.

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And it's so fun because I just

had two, um, female attorneys from

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New York and the interview did

not go like how I had expected.

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They were not collaborative

law attorneys, but like you,

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they cared about the families.

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I'm like, this is the whole new.

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This is the what I dreamed about.

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You know what I mean?

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And I love that you learned about

collaborative law in law school.

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I, I too went after starting a career.

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I'm a little more mature than you.

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And so when I went, um, I wasn't

hearing a lot about collaborative law.

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I heard a little bit about mediation.

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Um, and I jumped in.

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I did some, a state law when my

kids were babies and just 'cause

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it seemed like it was simpler, but

it wasn't really a good fit for me.

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Um, and as I kept searching for what was a

good fit, I realized I didn't wanna fight.

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I wanted to help people

communicate and work together.

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And I think we do have some new

attorneys coming out with this

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thought process and, you know.

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I love it because it's giving us a

better name because, and I have dealt

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with some attorneys who wanna just

keep the fire burning 'cause they're

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making money and I don't like that.

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I don't like that at all.

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So I love that we have

this, these people here.

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There's you helping people work together.

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Why make it worse in

your head emotionally?

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Financially, you know, I,

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Speaker 2: I totally agree with that

and I'll say, um, I'm a little bit

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lucky because I live in Minnesota

and that's where my license is,

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and Minnesota is literally the

birthplace of collaborative law.

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It was created in the nineties

and from there it became this

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international phenomenon.

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There's an international group

called the IACP, and it's now in lots

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and lots of different states and I

think it's getting more traction.

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Um, and there are some states who

have embraced it wholeheartedly

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and actually use this.

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Um, approach and other types

of law, not just family law.

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So I do think that the, the

world is sort of ripe for

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another way to resolve conflict.

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I so

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Speaker: agree.

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Yeah.

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Yeah.

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Speaker 2: There are people who are

stepping up to the plate, um, and

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still wanna do it in a way where we

can protect people and also protect

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sort of the outcome when, because when

you're married, especially with kids.

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Whether you're divorced or not, or

you've created two households and

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you know, you don't just have one

anymore, you're in each other's lives.

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Mm-hmm.

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And we have to figure

out ways to communicate.

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And the process you choose to get to

the final divorce decree, for example,

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is really important because I think

it affects how you communicate later.

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Yeah.

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And what's nice about collaborative

law and why it will, I'll mention

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this too when we talk about the

postnuptial agreements, but we also

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can use other resources that I think

mediators are very familiar with, but.

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I can pull in professionals who

are financial neutrals, who are

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trained mediators themselves, they're

financial planners, and they also

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understand and have been trained

in the collaborative process.

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Mm-hmm.

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So they understand how

to support the process.

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Same with family specialists as well.

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So we can pull on folks like that,

who can help us sort of build

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everybody up for the next step.

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Speaker: Right.

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And I just have to add, I love

the piece where you help kids.

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In collaborative law, you can, you know,

I know there's lots of great therapists.

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Brian Burns has been on this podcast.

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I use him, um, when a kid's, you

know, when we're struggling to find

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out what that kid really wants.

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Speaker 3: Yeah.

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Speaker: Um, you know, so there's some, so

it's, it's just such a, a special thing.

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And I think in New York, um, I

don't think collaborative law

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is what it is in Minnesota.

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So if you're there.

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You know, check out the ladies

that were on last week and

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'cause they'll be helpful.

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But, um, if you're in Minnesota.

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You know, reach out to Melissa, reach

out to someone from the Collaborative

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Law Institute because it is a great

way to do it if you can work together.

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So, okay, so now we've like done our

little plug for collaborative law.

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And I'm not even really part of it,

but it's just in my realm, in my,

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it's, it's, um, I wanna talk about,

well, let's just, let's start out,

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some people might be, what's a postnup?

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What is that?

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Speaker 2: So I'm gonna say the, the

alpha world prenuptial agreement first.

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Speaker: Oh, let's talk about that.

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Speaker 2: Easier to understand a

postnuptial agreement if we understand

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what a prenuptial agreement is, right?

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Mm-hmm.

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So, um, so a prenuptial agreement you

probably more likely heard of, but a

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prenuptial agreement is before you get

married, you get to make decisions about

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if you want to do something different than

the law would do in the case of divorce.

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End or death, which are

the two ways marriages end.

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Right?

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Speaker: Yeah.

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Speaker 2: A post-nuptial agreement

is a similar concept except you

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are already married, so we can put

together an agreement that would look

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similar to a prenuptial agreement,

but you're already married, so we

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don't have the prenuptial part of it.

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We have the post-nuptial part of it.

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Speaker: Okay.

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I didn't think I was gonna do this, so

we don't have to go here, but can we

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talk a little bit more about prenups?

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Yes.

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Because I'm.

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It's interesting, Melissa.

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I have like so many young women, like

if I go to a baby shower and they're

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like, oh, you do that podcast about

divorce, how do I not get divorced?

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Or, what do you think about this?

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Can you just talk a little bit about a

prenup and how that can be really good?

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Yes.

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For your marriage, when you, when you

are deciding to get married, would you

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mind, I'm sorry, I didn't tell you.

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I

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Speaker 2: do prenups and post.

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Um, as well as estate planning.

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This is sort of like all

preventative problem solving, right?

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Speaker: Yes.

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Yes.

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Speaker 2: So, um, here's the thing

about prenuptial agreements, which

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I think is super interesting, is

a lot of people think it's sort of

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the precursor to divorce, right?

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Like, ooh, we're planning for a

divorce before we even get married.

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Yeah, and it sounds really awful.

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I would argue that it's actually a really

important tool that will strengthen

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your marriage because you go in with

eyes wide open and here's the thing.

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When you're getting married, at least

in Minnesota, it doesn't take a lot.

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You have to be 18.

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Mm-hmm.

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Speaker 3: And you have

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Speaker 2: to be not married.

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And then you get to sign on the

dotted line, which is great.

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When you sign on the dotted

line, these things called spousal

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rights get put into place.

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And those spousal rights, if

you don't understand what they

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are, that can be really shocking

if you end up getting divorced.

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Speaker: Okay.

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Melissa, I'm gonna jump in

because I just had this Aha.

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When you were talking about this, I almost

felt like everybody should, should do one.

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Everybody should do.

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You wanna know why?

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Because so many people come to me and

they're, they're needing to get divorced.

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They wanna do it together.

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And they're like, well, can't

we just like, we don't care.

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Like who?

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And I'm like.

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No, you are in a legally binding

committed partnership and people

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don't even understand that.

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Yeah.

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They have no idea that their business

or, you know, they have no idea.

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They're like, well, this

is how we wanna do it.

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Well, we can probably get you to where

you wanna go, but this is a legal,

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you know, we gotta go through this.

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And if they have it set up,

they're gonna be more aware.

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This is a big deal.

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This is a big commitment.

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It's not only a big commitment

for you, it's a huge commitment

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as a partnership, as a business.

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Speaker 2: Yes.

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And you don't need the court

to, uh, to get married.

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You sign and you have a, a witness.

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Yes.

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But like, you need a

judge to get divorced.

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Right.

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At least in Minnesota.

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I'm not gonna speak to the

whole country, but Right.

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Every state has their own laws about

how this works, especially with

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prenuptial and postnuptial agreements,

not all states will honor them.

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Um, so it kind of depends on the

state that you're in as well.

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But yeah, you, you need

a judge to sign off on.

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A divorce and they're gonna look at the

division of your assets, and all of a

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sudden we have this huge learning curve

about what does division of assets mean?

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What kind of assets get divided?

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So when I'm doing prenuptial

agreements, I really think about

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it more as a marital estate plan.

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It's a, it's basically a way

to have a conversation about

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finances and you get to make.

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I guess really important

conversations take place about

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how do we want our money to flow?

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Are we gonna be really separate?

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Are we gonna join things?

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Are we joining everything?

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And what does that look like?

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And then if a divorce were to happen.

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How is that then cha, how does that

change how this property is understood

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and how it gets divided, essentially.

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But I think it's much better, and

obviously I'm biased, but going in,

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knowing what that could look like.

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And some people feel very differently

when a marriage ends with a divorce

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versus when a marriage ends with in death.

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Right.

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And so you can handle those two

points in time differently, and you

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can do that while you love each other

while you're making good decisions.

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Yeah.

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And you can also have really good

conversations before you get married to

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make sure that if you have differences

of opinion, you talk about it and

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you sort of have a plan for that.

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Speaker: I, I think that is, that's

what I find to be the most helpful

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piece of it, is that you're really

understanding what you're getting into.

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And we don't, I didn't, I went

through a church thing that

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helped, but I didn't go through.

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Understanding the financial aspect, you

really need to under, I mean, you wouldn't

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go just into a, well, maybe some people go

into business with someone without, but I

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wouldn't, you know, and so I, and I, yeah.

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I don't see it as even leading to divorce.

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I see it.

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And, and here's another thing, Melissa,

I was thinking about when you are

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getting divorced, emotions are high

and it's really hard to use that

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prodigy brain to come to decisions.

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If you can talk about it, when you're

in a good place, when you're using

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your brain and you're not under

stress and you have it kind of all

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you, it makes it so much simpler and

you hope that you don't get there.

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You, I mean, I wonder, I would

love to see couples who sit

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down together and do a prenup.

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I would love to see if they

get divorced more or less.

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Speaker 2: It would be really interesting.

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I don't have any stats

on that, but if we can,

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Speaker: how can we, well, let's do it.

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Speaker 2: Think of something so.

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A lot of times when I'm doing

prenuptial agreements, it's not like

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we're really, um, doing something

that's like, oh, this is super

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different than what the law would say.

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But it also does something

that's important that helps

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you stamp something in time.

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And you probably on this podcast

talk about marital property

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and non-marital property.

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So that's a concept if you're

not familiar with it a little.

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Yeah.

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Um, is, um.

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There's certain kinds of property that

gets divided and certain that doesn't.

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And so instead of having a fight later

about what is and what isn't gonna be

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divided, you get to decide that upfront.

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Mm-hmm.

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And so people who are bringing

things to the marriage, maybe it's,

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um, they already have a business or

each, each spouse has a, a home, or

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they've already been married before.

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They're bringing things, history, life

experience to the marriage, and we can

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kind of put a stamp in time that says,

Hey, this is what's happening now.

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So that if something changes in the

future and we look back, we've already

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established a foundation or a baseline

that people can fight about and this

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helps take the fight out of it, and

I think it makes it less contentious.

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And it makes it, um, less costly.

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Mm-hmm.

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: 00:15:10

Because the first thing an attorney

asks, when you're getting, when you

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: 00:15:13

talk to a divorce attorney, if you're,

if you're looking at divorces, do

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: 00:15:16

you have a prenuptial agreement?

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: 00:15:18

The second question is gonna be,

do we wanna try to invalidate it?

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: 00:15:21

Do we wanna enforce it?

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: 00:15:22

Like, where are you at?

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: 00:15:23

And I will tell you many, many

times when I was doing this type

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: 00:15:27

of work, clients would say to me,

this is the agreement we wa we made.

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: 00:15:30

I'm gonna honor it.

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: 00:15:31

Let's just move forward.

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: 00:15:33

And we've hurdled and skipped a whole

bunch of steps that cause a lot of, um,

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: 00:15:37

contention and fighting that can do that

and, and adds to that sort of levity

331

: 00:15:42

and inability to process information

because you're emotional about things.

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: 00:15:45

Yep.

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: 00:15:45

And so I think it helps.

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: 00:15:47

Smooth.

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: 00:15:47

I mean, the intent really is

to help smooth those processes

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: 00:15:49

down and let, let them be less

intense when emotions are running

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: 00:15:54

Speaker: high.

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: 00:15:55

Right.

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: 00:15:55

Okay.

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: 00:15:55

I have to ask you a couple

questions that popped up.

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: 00:15:57

You said that this is true

in the state of Minnesota.

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: 00:16:01

This podcast is not just

in the state of Minnesota.

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: 00:16:04

So what if people are listening to this

and they're like, okay, I live in Maine.

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: 00:16:09

I live in, you know, I

don't know if this applies.

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: 00:16:13

How can they, what's an easy way for them?

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: 00:16:16

Do they just, I mean, I guess we just

Google everything now, but what's a

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: 00:16:19

good way for them to know if there

are pre and postnup in their state?

348

: 00:16:24

I almost feel like I should get a list.

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: 00:16:26

Speaker 2: Yeah, maybe we

could put a list together.

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: 00:16:27

Um, what I would do is, um, I would

either talk to an attorney, usually an

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: 00:16:31

estate planning attorney or a family law

attorney would be the place you would

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: 00:16:35

start to know if it's even an option

for you in the state that you live in.

353

: 00:16:40

You can also look up your state statutes.

354

: 00:16:42

Um, I will say prenup.

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: 00:16:44

We call them prenuptial agreements.

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: 00:16:45

I don't

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: 00:16:45

Speaker: even wanna read the

statute and I'm an attorney

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: 00:16:49

Speaker 2: know if it's there.

359

: 00:16:50

Right, exactly.

360

: 00:16:51

Um, is there one and how handled?

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: 00:16:53

Um, and I'll say in Minnesota, they're

actually not called pre, we call them

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: 00:16:57

prenuptial agreements, but they're

actually called antinuptial agreements.

363

: 00:17:00

Okay.

364

: 00:17:00

I didn't even, yeah, yeah.

365

: 00:17:01

So A NTE nuptial Okay.

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: 00:17:05

Is what they're actually called.

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: 00:17:05

So, um, but yeah, I would, I

would, I would probably do a search

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: 00:17:09

and say, Hey, is this viable?

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: 00:17:10

Is this something that I can do?

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: 00:17:12

Speaker: And then I have to ask

you something else because, and you

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: 00:17:15

mentioned this, that the first question

attorneys ask, do you have a prenup?

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: 00:17:21

And then the second question

is, do you want to stand by

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: 00:17:25

it or do you wanna fight it?

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: 00:17:26

And I have heard, and this,

they kinda get a bad rap.

375

: 00:17:31

They do because people fight 'em.

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: 00:17:34

And how successful are they

and how often are they fought?

377

: 00:17:38

So you put this beautiful

thing together and then.

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: 00:17:42

Then you're gonna pay

more to fight about it.

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: 00:17:44

That's what people are maybe thinking.

380

: 00:17:46

Speaker 2: Got it.

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: 00:17:47

Um, so here's what I'll say

is the thing about the law is

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: 00:17:50

there's no black and white.

383

: 00:17:52

There just isn't.

384

: 00:17:53

Mm-hmm.

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: 00:17:53

And so if you're going to fight a

prenuptial agreement, chances are

386

: 00:17:57

you are gonna fight anyway because

the things that are in the prenuptial

387

: 00:18:01

agreement, what you're basically

doing is you're helping yourself, um.

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: 00:18:07

Say, this is where we were at.

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: 00:18:09

This is why it's important, and that's

one of the reasons why I really encourage

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: 00:18:13

people with prenuptial agreements.

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: 00:18:14

And postal agreements in Minnesota

are required that you both have

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: 00:18:17

an attorney because you want the

prenup to be as strong as possible.

393

: 00:18:21

You wanna understand your rights, you

wanna understand what the provisions mean.

394

: 00:18:26

You wanna make sure things that are

in there are allowed to be in there.

395

: 00:18:30

And then it's really a contract.

396

: 00:18:31

So it's it al almost is like, are

we gonna evaluate this contract?

397

: 00:18:35

Now?

398

: 00:18:36

My experience is people tend to

honor the prenuptial agreement.

399

: 00:18:40

I'm sure that there would be litigators

who tell you that that is not the case.

400

: 00:18:44

So my world tends to be mm-hmm.

401

: 00:18:47

People who are planners and are

trying to be great to each other

402

: 00:18:51

and know that they want their kids

to have the best parents they can.

403

: 00:18:55

And so I think people who work with

me tend to want to be more mm-hmm.

404

: 00:18:59

Collaborative.

405

: 00:19:00

I'll say that in a, like a small

c sort of way, like mm-hmm.

406

: 00:19:04

Um, so my, my bias is probably

presenting itself very clearly here.

407

: 00:19:09

But I do think it helps you at least

state in a moment in time, this is

408

: 00:19:13

what we came to the marriage with.

409

: 00:19:15

And that is one of the questions

that that gets asked whether you

410

: 00:19:18

have a prenuptial agreement or not.

411

: 00:19:19

Speaker: Mm-hmm.

412

: 00:19:20

What

413

: 00:19:20

Speaker 2: come to the

marriage with, right,

414

: 00:19:22

Speaker: right.

415

: 00:19:22

Speaker 2: And now we're

saying, here's what it is.

416

: 00:19:24

Not only that, but here's the

exhibits, here's the full disclosure.

417

: 00:19:28

Here's, there's no

fraud, there's no duress.

418

: 00:19:30

And when a prenuptial agreement is fought,

there's typically provisions that say,

419

: 00:19:35

well, if you take out this one little

section or this one little section didn't

420

: 00:19:38

work, the rest of it's still valid.

421

: 00:19:39

You're still minimizing as much as

possible and setting yourself up

422

: 00:19:43

for success to have less arguments.

423

: 00:19:46

Speaker: Gotcha.

424

: 00:19:47

Okay.

425

: 00:19:47

That's helpful.

426

: 00:19:48

I, yeah, I see it.

427

: 00:19:50

Overall as a great, great tool that

I'm gonna recommend a lot more,

428

: 00:19:55

I think, than I have, have been.

429

: 00:19:57

Speaker 2: It's a really good tool

for strengthening your marriage.

430

: 00:19:59

I

431

: 00:19:59

Speaker: think so.

432

: 00:20:00

And understanding what

you're getting into.