Divorce lawyer shares two big mistakes people always make in their prenups

A divorce lawyer has opened up on why nearly wed couples should think twice about adding certain clauses to their prenups.

Essentially a marriage contract, a prenuptial agreement is a commitment made by two parties before they say ‘I do’.

It works to record the ownership of assets and outlines exactly what will happen to those listed assets should the relationship sour and end in divorce.

According to the Marriage Foundation, in 2021 only one in five couples that married since 2000 had some kind of prenup in place.

Famously, Jada Pinkett Smith and Will Smith are one of the couples who decided against one before marrying in 1997, while Britney Spears and Sam Asghari have previously clashed over their prenup agreement.

But if a couple is thinking about putting a prenup in place, a divorce lawyer believes two clauses shouldn’t be included.

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New York lawyer James Sexton recently appeared on the Lex Fridman podcast to explain the two biggest mistakes people make in their prenup, the first of which is a fidelity clause.

He said: “So fidelity clauses are, ‘I’m waiving alimony, I’m waving this and that, but if you cheat, I get a million bucks.'

“And I know the intention is to disincentivize the person from cheating. But all it really does is just creates like an interesting legal battle for lawyers.

“Like, how did you prove that they cheated or not? Is an emotional affair an affair? Is oral sex cheating? And by the way - how do you prove it?”

Sexton continued to say that despite fidelity clauses opening up a ‘can of worms’, people still like to put them in their prenups.

He then went on to discuss the second big mistake people make.

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A sunset clause specifies a deadline on which the contract will automatically terminate.

“Sunset clauses is if we’re married X period of time, this goes away as if it never existed,” Sexton explained.

He said that the sunset clause creates a ‘very uncomfortable thought experiment’ because by the time the prenup is about to expire the honeymoon period might well be ‘kind of over’.

“You might have a kid or two and you go, ‘OK, wait a minute, am I so happy in this relationship that I’m willing to take all of my premarital assets and throw them in the pot right now?’”

Sexton speculated that people might rush to divorce before the deadline expires.

After learning about sunset and fidelity clauses, Fridman said: “And that, kids, is why you pay for a lawyer.”

Closing off the segment, Sexton joked: “We get paid to see around corners, you know. I get paid to be paranoid. I tell people that all the time.”