Divorce lawyer shares two common mistakes couples need to avoid while drafting a prenup

Marriage is an important milestone that changes the trajectory of life for those involved. To prepare for this, some couples opt to get prenups drawn up so as to protect their assets in case of any future marital turbulence. Given the sensitive nature of prenups, it would be wise to follow a certain prudence while creating them. It should stand for the best interests of both partners and ensure that both are secure. During an appearance on the Lex Fridman podcast, Divorce lawyer James Sexton shared his professional opinion on what most couples get wrong in this process. The host shared a glimpse of his insights in a TikTok video where Sexton shared the two most common mistakes couples make during prenups. In an earlier video, the lawyer also weighed in on the importance of a sensible prenup and how it will aid in marriage. 

He first spoke about how many people ignore the profoundness of marriage. “It’s the most important thing they’re going to do other than dying and they have no idea about it,” Sexton said. He explained that the lack of knowledge couples have about the legalities of marriage causes them to, unfortunately, learn about the same during their divorce. Sexton then stressed the need to have a prenup to understand what marriage holds before getting into it and not just doing it for the photoshoot opportunities a wedding presents. The lawyer also spoke about the need to normalize prenups and though it’s not something to publicly announce, it does hold immense value.

“What you’re doing in a prenup is identifying what things will be like in advance,” Sexton explained. In another video, the host shared what the lawyer considers to be the two major mistakes couples make while drafting a prenup. “The 2 things that I discourage people from putting in prenups are the fidelity clause and the sunset clause,” Sexton revealed. Explaining the fidelity clause, he said, “Fidelity clause is like ‘I’m waiving alimony and everything but if you cheat I get like a million.’” Elaborating on the same, Sexton said that the fidelity clause is like “opening a can of worms” and that it just makes the divorce an interesting battle for lawyers. 

He then spoke about the sunset clause, explaining that it refers to the idea that if one is married to a person for a certain period of time, the prenup is declared null and void. While the clause proceeds with the notion that after a certain number of years, couples would be serious together and live as one for the rest of their lives, this isn't always the case. The lawyer explained that after a certain number of years, when other challenges enter married life, one may question their marriage and whether they’re truly happy. Sexton also shared that when the sunset clause is nearing its period, it forces couples to ask themselves serious questions about their marriage, which again is not the best idea. 

Quite a few people had opposing views about the prenup, especially with the fidelity clause. @pinekone said, “A fidelity clause is the main reason to get a prenup. Without one, don’t bother getting a prenup.” @lunanoirflow said, “A lawyer once told me that a clause is only as bad as the details you put in. People don’t add details enough and it kills them.” @unfranchisable was onboard with the sunset clause. She said, “I’ve never heard of a sunset clause. It’s like putting a weird fork in the middle of the road.”