Should You Be Asking for a Disclosure-Only Pre-nuptial?

Recent data relating to couples who have married in recent years shows that men and women are deferring marriage to their late 20s and early 30s. In real terms what that means is that the people approaching the altar do so with “history.”  The other thing that has changed over the years is who we marry. Before World War II chances were strong that your intended lived in your neighborhood or perhaps the “next parish over.” As time has evolved people found spouses in college and their workplace. Then the success of the internet gave birth first to “My Space” (2003) and “Facebook” (2004). Our communities grew exponentially because they were now electronic. The Covid pandemic made it possible to interact in person across the world. It is as likely as not when lawyers conduct interviews related to dissolving a marriage our questions about history begin with “We met on the internet.”

That history often takes on a twist. The person the client met, fell in love with and married was not “as represented.” Often it is a failure to reveal a spotty employment history, unpaid back taxes or poor credit. These non-disclosures can be painful. Then there are the ones which truly are relationship shattering. The undisclosed child, criminal record or looming bankruptcy really do fracture the trust that is the foundation of marriage. It also induces a kind of personal humiliation when a client who has a career and life in order is sitting across from a lawyer and having to acknowledge that he/she was completely duped. Think about the experience of seeing your joint bank account vanish one day because your spouse owed $15,000 in support arrears for a child you didn’t know about. Yes, that can happen.

If you want airtight guarantees against such risks, the cost may be significant.  Private investigators can be engaged to do a broad range background search. But getting things like credit histories, tax controversies not reduced to judgment or paternity and support cases is not easy in a world where all 50 states maintain their own records and then there is the overlay of cases in the United States District Courts. So, if your intended was raised in California, went to college in Virginia and worked in New York and Georgia before you met, this is a four state search. Not easy and also not cheap.

There may be a less expensive alternative. It would involve a disclosure agreement which states, simply that you and your intended plan to marry and wish to make clear that you have disclosed to each other that:

1. You have never been arrested.
2. You have never been charged with a crime.
3. You have never been sued for paternity, custody or child support.
4. You have never been named as a defendant in a court case including but not limited to

allegations of physical abuse, harassment, trespass or invasion of privacy.

• You have never filed for any form of relief under the bankruptcy laws of the U.S.
• You have no judgments against you of any kind, whether civil, criminal or support related.
• You have never been married before [except ………and that marriage ended in divorce.]
• You have a current credit score above 600 [fair].
• You have no joint debt with any other person.
• You have not guaranteed the debt of anyone else.

We could add to this list, but it gets complex. Your intended claims a master’s degree from Penn State.  Add that? She says she worked for Merck for six years and Pfizer for three. Yes? She has never rooted for the Pirates?

But circling back to our top ten. Read through that and ask yourself whether anyone answered “Incorrect” would be met by your response “OK, not a problem.” Some may produce trivial answers such as the arrest for drunk and disorderly in Spring Break 2014 or a satisfied judgment from a rental disagreement in 2018. Perhaps the credit score is a disappointment, but that stuff happens.

Then there are the major offenses. An undisclosed child, a former spouse whose college loans your intended co-signed. The physical abuse charges which were filed but later withdrawn. Those are the ones you should be thinking hard about. We all make mistakes but forgive and forget should require disclosure, right?

Suppose you presented such a document saying, “I want both of us to sign this before we start booking wedding venues and vacation resorts. It’s just ten sentences.” Here are some possible responses.

1. “Obviously you don’t trust me”  This is a manipulative diversion to which the answer is “I want to trust you but we both need to start with a common set of understandings about our histories.  I want to make the same assurances to you”
2. “This is a curve but let me review it.” Response: “Take your time but I will want definitive answers just as I will give you.

You don’t want this to be a confrontation but, again, answers to those 10 questions are both fair to ask and easy to answer. Could you be lied to in such a document? Absolutely. There are people in this world who are complete frauds. But while most people can be comfortable shading, dissembling or pretending facts aren’t true, they have trouble signing off on simple declarative  statements which they know to be inaccurate.

Is there a legal remedy if you are lied to? Probably not. You may be the victim of a misrepresentation but to secure damages you have to incur them. There are damage theories to be conjured but not easy to prosecute. But, in this process, you will learn a lot about the trustworthiness of the person you have chosen to marry.

Some may dismiss this kind of agreement as overkill. Realize that the FTC reported that nearly 700,000 people were scammed out of a record $10 billion in 2023. A lot of that fraud involves  schemes on the internet. Understand that most of those scams are premised upon people believing what they are told. A marital relationship is premised upon believing what you are told. It is good to trust. But in this day in age, it is wise to trust but verify.

Story originally seen here