A Divorce Attorney's Guide to Staying Together... and Not Going Broke

21:46And by the way, isn't that the best way to know if the relationship's worth having? If you're radiating that in their direction and they're not radiating it back, then maybe that's when you go, OK, exit visas are imminent here because that's the best way to do it. But like, don't complain if your partner isn't like honoring you and making you feel seen and loved in the same way that you're not honoring them and not making them see

22:09Nicole Lapin:the change. Also, my husband and I talk about each other as boyfriend and girlfriends. Isn't that love? Or like I'm bringing my fiance, too, because we were all of those. And don't you want him to be your boyfriend forever? And don't you want to be his girlfriend? Absolutely. Because there's nothing more like your girlfriend. You're constantly trying to close the deal. And your girlfriend, you're constantly trying to impress. And I'm not suggesting that there shouldn't be a level in a long term relationship of, hey, I don't have to put on this persona. I can just be my messy self. I think it's one of the most beautiful things about being in a relationship.

22:42but there is real value in still making your partner feel handsome and smart and capable. Like every single man in the world, gay, straight, all of us open a jar of pickles in front of us. So I can't get this open. Whatever age we are, we can't wait to be the hero. We can't wait to open that jar of pickles for you. Like there is no one who doesn't want to be of value and purpose to their partner. and it's not that hard to make someone feel seen and loved and important. And I tell my male friends all the time, particularly my heterosexual male friends, I tell them all the time, like, you know, when they send a text to their wife or their girlfriend in the middle of the day, just saying like, oh, I was thinking of you.

23:27I'm like, that's the equivalent of her sending you nudes. Do you understand? Like, that's like, it's literally the same thing. It's saying like, you're special. I see you. I haven't forgotten you. You're you're on my mind. You're in my heart. That takes nothing to do. And I really think it's the antidote to the slippage that occurs in the absence of that kind of thing.

23:49Nicole Lapin:So from everybody that you've represented, you think that the commonality to mitigate getting to that icky divorce place is just doing those small things. Yeah, they just stopped doing the thing. They stopped doing the thing that they used to do. One or both of them stopped doing the thing. Now, I'm not suggesting there aren't people who choose a partner who is incompatible with them, where there are fundamental differences or where there are some intervening circumstances like mental health issues, substance use issues, you know, that that impact what was a functional relationship. But most of the time, in my experience, we want to point to big things like infidelity and financial impropriety and say that's the reason we got divorced.

24:35But I tend in 25 years of practicing divorce law and representing the cheater and the cheated on the perpetrator of domestic violence and the victim of domestic violence. Like I've represented both sides of every single issue in 25 years and I've represented people from Main Street to Wall Street. Like I've represented people who were, you know, the beginning of my career was like cops and teachers. And now it's hedge fund managers and celebrities. And we all suck at this, by the way. Like it's the great commonality. Great equalizer. It really is. Like it really, really is. Like I represent someone who won an Emmy and I represent their housekeeper.

25:12They're in very different tax brackets and have very different life experiences. And their marriages failed for very similar reasons. because this is not something that you're just born with knowing how to do. I think it's actually a teachable skill, though. Like we spend a lot of time trying to teach the quadratic formula to people and teaching them that, you know, like sodium and chloride to table salt. I've had it fully none, like none times in my life. But understanding like how to have a conversation with your romantic partner, like the importance of checking in with them, how to tell someone something they don't want to hear in a way that doesn't make them instantly defensive.

25:56Like those are really, I think, easy, teachable skills. like how many men I will tell you, I've met so many men who one of their chief complaints in their marriages, we used to have so much more sex and now we don't have as much sex. And if you say to those guys, have you ever brought the topic up? They'll often say, Oh yeah. And I'll say, what did you say? And they'll say, I said, Hey, why aren't we having sex as much as we used to? I'm like, did you think that was going to go well? Like that's an accusatory way of bringing that up. It's going to bring out nothing but defensiveness. I'm like, Whereas, didn't anybody ever tell you, like, there's another way to have that conversation?

26:35Like, what if you said to her, you know what happened yesterday? I was driving past that restaurant that we went to on, like, our third date. I don't know if you remember it. We drove past it. And I was thinking about how, like, we went out on that. And then we literally didn't leave my apartment for two days. And I was thinking about, like, how, like, oh, my God, that was, like, so much fun. Like, I remember when we were, like, we didn't have a care in the world. And we were just OK. Now you've primed the pump like you're bringing her back to this shared memory that the two of you had. And now like now you're there and you're kind of like, oh, she's there with you.

27:09And she loved that moment, too. You know, and now we're not bringing out something defensive like every couple. Like I guarantee you and your husband have some core memories from the early days of your relationship that when you go back there in your memory, you're wild about him again, the way you were back then. And he's the same way towards you. So bringing the person back to why do we teach people this? This is so easy. It's so it doesn't cost anything. You don't need to take a whole course. It's just a simple way to talk about things in a way that doesn't bring up defensiveness. But we don't teach this to anybody.

27:44We'd rather sow derision and division and have the girls versus boys conversation that The algorithm keeps shoving down all of our throats where everything wrong for women is men's fault. Everything wrong for men is women's fault. Every time a woman says, man, it's really hard to be a woman. Men are conditioned to hear it as and it's easy being a man. And similarly, when a man says, man, it's hard to be a man. Sometimes women are conditioned to hear it as, oh, and it's easy being a woman. Like that's what the algorithm shoving down our throats. And the truth is like a world where women are flailing is not a world where men are thriving.

28:20And a world where men are flailing is not a world where women will be thriving. Like we need each other. We're stuck with each other. Like this is a knife fight in the closet. It's not going to end well, you know, just start stabbing like the lights are off. We're going to hurt each other. So why don't we like stop and try to hear each other a little more and start to sort of have the conversation be one about I don't know what it's like to be a woman. Help me understand that. You know, you don't know what it's like to be a man. I'd like to help you understand that so we can love each other better and we can do a better job of hearing each other and seeing each other and making each other feel loved.

28:54Because I don't just want to love someone. I want them to feel my love.

29:01Nicole Lapin:It's not just communicating. Everybody says that's the key to it, but it's how you communicate. What does that mean? Like, I love when people say, like, you know, I mean, we're both in professions where everybody just loves to give these platitudes that sound more like a roomy poem than anything of value. You know, like, well, you have to invest wisely. What does that mean? Like 10 people could define that differently. You have to communicate better. What does that mean? Like, I need practical answers. Like, what should I do with my money? Should I be in bonds? What should I be doing? Like, I need practical wisdom.

29:32You know, I want real advice. Same thing with this. Like, communicate better. You need to stay connected to your partner. What does that mean? Does that mean we should have a date night? Does it mean we should go on vacation more? Does it mean I should send her a telegraph? Like what? Give me some practical solutions to this very real practical problem I'm having. And I'm all ears. And I think that's what the world is not getting when it comes to relationships.

29:53Nicole Lapin:Well, divorce, everything is so expensive and so draining. Yeah. Getting married is not. Do you think that there should be a higher barrier to entry for marriage? Yeah. You know, it's a great question. It's I think it's the question more people should be asking. everybody's so caught up in like, you know, no fault divorce made it too easy to get divorced. And it's like, that's like saying like, well, you know, like hospitals are so easy to get into now. So that's probably why people like break their limbs more often. And it's like, I don't think people are making causation. Like, I don't think that you think you got it mixed up.

30:27I think if you wanted to increase the success of marriages, you would make it something that you have to work a little harder to get. You know, it's the most legally significant thing you'll ever do other than dying. And when you do it, no one explains to you legally what you just did. Like you've opted out of the title system. Yeah, but like it's the only contract that you don't actually sign. Like you sign a marriage license, but it doesn't have the terms and conditions in it. It doesn't say by signing this document, you've opted out of the title system, opted into a system of spousal support.

31:01And by the way, it can be changed by the state legislator or the state in which you reside at the time of a divorce. which could be changed any time.

31:07Nicole Lapin:But when you sign, you sign up for all of that. You sign up for all. Well, that's why I always tell people every marriage has a prenup. Every marriage has a prenup. It's either one that's written by the government and gets to be changed by the government without your consent, or it's one that's written by the two people that claim to love each other more than the 8 billion other options. Now, to me, whatever your political leanings, left, right, or the disgruntled middle, the The truth is, at some point in the last 15 years, you've looked at the government and went, what are these people doing?

31:36They should not be in charge of anything. OK, whatever side of the eye around at some point in the last 15 years, you have looked at the government and said, I don't trust them. OK, so why would you trust a future government of a state that you don't know which state it'll be that you'll be residing in in the event that your marriage ends? Why would you trust that future imagined politician with making the rule set for your marriage? That's insane. But people do it all the time because it's easier to just trust that than to have a potentially difficult conversation.

32:08Nicole Lapin:We talked a lot about prenups on the show, so I don't want to get into the blocking of tackling. We'll link some of those episodes in the show notes. But I do want to ask you about what's enforceable because you have a story of somebody you've represented that blew my mind about what's enforceable or not. I was always told that the crazy clauses like the weight gain clauses or the fidelity clauses, the hanging out, the in-laws clauses, all of that stuff were not enforceable. Yeah, I don't know who's telling you that because the truth is they are enforceable. It depends on the jurisdiction that you're in.

32:41The U.K. certainly has a less enforceability approach towards prenuptial agreements. But the major states, California, New York, Florida, like they have, you know, contract law is very well settled law. Now, what what I think a lot of people are probably mistakenly characterizing as the prenup not being enforceable is a prenup that's not drafted properly. So, for example, a fidelity clause that that does not very clearly define with specificity what is infidelity for the purposes of that clause. And it doesn't specifically delineate what the penalty is. And the penalty isn't so severe as to make the entire contract what's called unconscionable, which is a deal that is so unfair and lopsided that no reasonable person would offer it and no fair dealing person would ever accept it with full knowledge of facts.

33:29Like, yeah, if you don't draft things the right way, they're not enforceable. That's how prenups work. This is what people tend to do is they tend to like go online and find a twenty dollar prenup, you know, that they or they have Claude or, you know, chat GPT do a prenup for them. And then when it fails because it was badly drafted and they never showed it to a lawyer, they go, oh, prenups aren't enforceable. OK, that's not that's like me trying to build a car from spare parts I found at a junkyard and then saying cars are very dangerous. Like, no, cars built by an idiot who knows nothing about cars are very dangerous.

34:02It doesn't mean like a Volvo wouldn't be super safe. So I think those clauses can be an R. I mean, that case is a factual case. You can look it up. I mean, it was a I didn't write the prenup, but it was a well drafted prenup. And it was a very wealthy man who was marrying a woman who'd been a model for an extended period of time. And the economy between the two of them was fairly clear, like he was rich and she was hot. And that was kind of their what they both brought to the table. And they had a provision in their prenuptial agreement. And again, I didn't write it, but it was written by a very experienced attorney here in New York who was very reputable and a good drafts person, a curmudgeonly drafts person.

34:38And it defined that one of the terms was for every 10 pounds that the bride gained from the date of marriage to the date of what was called an operative event. So separation or divorce, she would lose$10 ,000 a month in alimony. and you know there was even a procedure as to like what her base weight was at the time of marriage and how the weight would be determined for the purposes of enforceability which again for me as a lawyer was what i was interested in i was like if so i would do the weigh-in when i got married with like pennies in my pockets and like i'd be wearing my heavy shoes and then when i did the weigh-in at divorce i would be like a wrestler wearing like the sweatsuit and the sauna you know to try to be as light as possible.

35:19Nicole Lapin:But or you wouldn't marry this cuckoo crazy person. The judge said the judge actually said this is a boorish clause. The you know, I don't I can't imagine why you married someone who insisted on having this clause in the agreement. However, it's a contract and you were both represented by counsel. She read it. She knew what she was signing. She not only read it. She was represented by counsel who made modifications to it like they made modifications to that provision. What some of the evidence that came in at the hearing was prior drafts. And there had been like multiple revisions to that provision so that they both like found a common ground and it was bargained for consideration.

35:58And she by the way, she still got like fifty thousand dollars a month. And these were these were people with literally billions of dollars. But and you represented this dude. I represented the dude. How did that make you feel? You know, I represent the client and I represent the system. And I don't always believe in the client, but I always believe in the system. You didn't believe in this client. I mean, I believed in him to the extent that I have to do the job. But, you know, anytime somebody says to me, how can you represent this person, whether it's a perpetrator of domestic violence or someone who is boorish in that way?

36:30My attitude is, if you don't believe in our legal system, it's a fundamental tenant of our democracy. Like I have maybe I'm overly patriotic, but like we have a flawed legal system. It's the worst one in the whole world, except for all the other ones. Like, I think we have a pretty good job of it. And so it requires zealous advocacy within the bounds of law. So I'm not going to, like, go to bat and bend the rules for that guy, but I'm going to do my job. And I did my job. I don't hang out with any of my clients like they're my clients. They're not my friends. They don't want me to be they don't want to be friends.

37:04First of all, I'm not very fun to have as a friend because all I do is work. And second of all, like, you know, you're hiring me to do a task. And my job is to go in and do that task. I'm a weapon, really. And a weapon in the hands of someone who's trying to protect people is a really useful, positive force for good. A weapon in the hands of a villain is incredibly dangerous and does a lot of damage. So I have the pleasure of occasionally getting to do a lot of really good for a worthy person. And sometimes I represent an awful person. One of the things I said to my son, my older son is an attorney himself now.

37:38He doesn't do family law, thank God. I said to him when he went to law school that the truth has a way of coming out. Like in court, the truth has a way of coming out. Sometimes despite my best efforts to the contrary, the truth has a way of coming out. When I lose, I don't usually get out lawyered. I lose because the truth comes out. Despite my best efforts to obfuscate it, throw up red herrings, detract the court's attention from it, it has a way of coming out. our system works a lot of the time, but you know, it, it, is it, does it feel good when you're representing somebody who's doing something?

38:16I mean, that was just sort of, look, I don't feel too bad for that woman. Like she signed this thing. Like she married this person. And by the way, he was ogre-ish. Like this was not a guy, like you didn't look at these two people and go, oh yes, they must've just met somewhere and fell in love. You looked at them and went, oh, he's rich and she's gorgeous. Like there's no, and there, by the way, there didn't seem to be a lot of substance to her and there was absolutely no beauty to him. So they both knew what they signed up for in that transaction. Like I've, I've felt bad representing some people that marriage.

38:50Nicole Lapin:Yeah. That was a transaction that marriage. Listen, I use very unsentimental language when I'm talking about marriage because I consider marriage and economy and like any economy. I mean, you understand economy is better than most people. An economy is an exchange of value. So how many apples is an apple worth? Well, that's a dumb question. Apple's worth an apple. But how many pineapples is an apple worth? Okay, now we're having an economy, right? So it's harder to grow a pineapple and you have to bring it from different places. So there's going to be more apples in exchange for a pineapple. Okay.

39:19Nicole Lapin:How much someone is willing to pay for that? What is beauty worth? What is love and affection worth? What is financial stability and security worth? How much of one will you trade for the other? That's what marriages are. Like you didn't get married because you and your husband bring exactly the same things to the table and you're the exact same person. Like you don't need another person to be you. You're you like, but can you learn everything you need to know about yourself from yourself? No. Like, can you see your blind spots? No, that's why they're blind spots. So you get into a relationship because there's some polarity and because the other brings other things to that economy.

39:55So I don't think it's a dirty word. Like I think if we really broke down your marriage or any marriage, you bring certain things and he brings certain things. And sometimes it's the same things. We listen to each other. We support each other. We have affection for each other. We give each other physical affection. But I bet there's some things you bring to the relationship that he doesn't, some weak spots that you shore up in the relationship. And he's probably got some strengths that, you know, shore up things that you aren't as strong in. And that's the beauty of a good relationship is that you have some similarities and some polarities.

40:25And it's like just a healthy little ecosystem that the two of you developed together.

40:29Nicole Lapin:For sure. I didn't want to marry myself or sleep with myself. Absolutely. But let's dig into the enforceability of this prenup clause. Prenups are contracts. So hold on. Laura Wasser was on the show. Sure. You know and love Laura Wasser. Yeah, I actually send a lot of business to Laura. She is such a badass like you. She's great. Incredible divorce attorney. She came on the show and said that these clauses around sex and weight, because there have been some gnarly ones that she's seen to are not enforceable. I listened to the episode. I was shouting at my radio, but yes, I have a radio. Yeah. Well, my car, I called it the radio, but yes, I was listening to the podcast.

41:08Yeah. I mean, listen, I, Laura and I might respectfully disagree on this. I think that California is a little different than New York and she's a California lawyer. So I will say California, for example, in prenups is not as generous when it comes to total waivers of spousal support, whereas New York enforces that. Maybe New York is more mercenary than California. I mean, I guess I wouldn't be the first person to say that. But yeah, I'm glad that she wasn't giving that advice to the New York audience because we would have to agree to disagree on that.

41:35Nicole Lapin:Or maybe it's just the lawyer. So maybe she got it. I mean, Laura is without question, one of the best divorce lawyers in the world. So I certainly would not ever bet against Laura in a courtroom. I send a lot of clients in her direction because there's a lot of people that are New York City and LA and they have homes in both, especially celebrities. So we have these jurisdictional battles sometimes of which place would be more favorable. And anytime it's a client that has some potential connection to California, I would send them to Laura and her firm. Laura is not a one woman operation. She manages an excellent firm and has nothing but an A team of people in there.

42:13So I always feel very comfortable sending people to her. But yeah, I mean, I think I think we we might disagree on our experience with this. I think if there is a place to attack something, Laura will find the place to attack it. So I don't find it hard to believe that she has probably managed to find little vulnerabilities in those contracts and found ways to try to set them aside. That's why. But I will tell you, I bet if anybody I know could do it, drafting a prenup provision, for example, with a fidelity clause or a weight clause that was the most likely to be enforced, it would be Laura or someone on her team, because those are very, you know, high level attorneys.

42:53And most of us in the high net worth, high level space, we all know what to do to make something enforceable.

43:02Nicole Lapin:So it sounds like you can put whatever you want in a prenup. The enforceability is up to the talent of the lawyer. Yes. And just like a non just like any like look at a prenup like any other contract. So, for example, a non compete. Right. Like if you make a non compete that is too broad or has no duration to its time limitation, it will not be enforced. So you can put anything you want in a contract. The question is, will it be enforceable? And if it's not enforceable, will it set aside everything else in the contract? Will it create a house of cards that when that clause falls, the rest of the thing falls, too?

43:40So an artful draftsperson is going to draft a prenuptial agreement where there are what we call non-severability clauses, which say that if one clause falls, the other ones stay in full force and effect. And we're going to very clearly define things and make sure we do it in a way that's not contrary to public policy, creating an enforceability issue. But I will tell you, I mean, I consider myself a very good lawyer. I have had a very low level of success at setting aside prenuptial agreements. I mean, and I think most very skilled attorneys, probably Laura included, will tell you when it is a well-crafted prenuptial agreement drafted by an experienced attorney where both parties were represented by counsel when they executed it.

44:25If you are the party trying to set it aside, you are in the disadvantaged position. So I don't, you know, listen, in a courtroom, in a negotiating table, I'll say whatever crazy thing I need to say to try to get the job done. But behind closed doors, somebody comes in to me and says, yeah, I hate this contract that was negotiated, fairly drafted by skilled attorneys. And we were both represented by counsel. I'm going to say to them, listen, I don't think you have a good chance. We can we can put on a show. We can do the best we can. We can try to use the potential expense of trying to set it aside, you know, like nuisance value.

44:59By the way, most good prenups have provisions in them that say that if you unsuccessfully try to set aside this prenup or you ask for relief outside of this prenup and you're not granted it by a court, you have to pay the reasonable counsel fees of the party who was trying to uphold the agreement.

45:13Nicole Lapin:Meaning if you try to get out of that prenup and you know you signed it and did all the things going into it. But then at the end, you try to say you try to set it aside later on. And then you can be responsible for the reasonable legal fees of the person seeking to uphold the contract. It's to prevent nuisance value suits where a person comes in and says, listen, I know I'm not getting this prenup set aside, but I'm going to make you spend fifty thousand dollars in legal fees. So if you give me an extra 40 grand that I'm not entitled to, I won't make you go through that exercise. It's to disincentivize that.

45:47Nicole Lapin:So if you're a regular person trying to get a prenup, going to like helloprenup.com, something like that. That's my competitor. Trusted Prenup is my company. Trusted prenup going online to do something that's pretty boilerplate. Yeah. Yeah. You just want to make sure that you have a lawyer for each side taking a look at it. I think that's always good. And what I will say is even though my company Trusted Prenup and Hello Prenup are sort of competitors, I know Julie and her team at Hello Prenup and they have an excellent product as well. We have a slightly different system that we use in terms of our software interface and the AI behind our products, but they have a good prenup.

46:21They put together a good prenup. They have good legal minds behind it. Laura is actually an attorney advisor for that company. My company was crafted using my stuff and some of the attorneys that I work with. But we all put together prenups that we know are enforceable and that are, you know, include. Thankfully, we've leveraged both companies have leveraged technology and experience to create prenups that are customizable within the state that you're in. But both Hello Prenup and Trusted Prenup and any attorney who is worth listening to will tell you you should bring it to an attorney and have it reviewed.

46:54And both Hello Prenup and Trusted Prenup have services where you can bundle in and we have referral attorneys who we vetted very carefully. Both companies do that. So, you know, there's a right way to do things. And all of the companies that are doing that in the space that are well known, Hello Prenup, Trusted Prenup, we all do it the same way to some degree, which is we all want it to be a carefully crafted, customized document that you should take to an attorney. And it should be an attorney who's been vetted and is a specialist in family law and knows what they're doing.

47:26Nicole Lapin:And you can put those crazy classes in there if you want. I mean, you can. Again, I don't encourage people to put those clauses in. I don't think that there's a lot of value in putting those clauses in. Like, I think fidelity clauses is the most common thing that people talk about. Like, I've only once or twice had someone suggest a wait clause. And you just have to give them the look. And most of the time it's like, yeah, never mind. But like fidelity clauses, you can have whole like a couple times a week. Somebody will suggest a fidelity clause to me. And I have to have the very harsh conversation with them about the fact that is this really going to disabuse anybody of cheating?

48:01Like, do you think anybody is ever thinking about cheating and then goes, I don't want to have a ten thousand dollar penalty for having had sex with this other person? And by the way, like, you know, let's put this in a really personal context. You know, if if you went home and said to your husband, you know, I met like four guys when I was in New York who I really wanted to have sex with. But, you know, we're married and we promised we're not going to sleep with other people. So I'm holding up my side of the bargain. Do you think he would go? That's so great, baby. You're so awesome. Like if he said that to you, you would be like, don't do me any favors.

48:38You met a bunch of women. You want to have sex with them now? Like, I don't I don't think I think in the right permutation of monogamy, you should have sex with as many people as you want to. And that would be just the one. Right. Because that's the one you chose. Whether it's in the prenup or not. Whether what would you feel good if somebody said, listen, I'm not going to sleep with other people because we signed this contract. Like, no, I'm not going to sleep with other people because I don't want to sleep with other people. Like, I'm not going to eat because I'm not hungry. Like, I'm not going to have sex with other people because I'm happy having sex just with you.

49:12Like, I would not want someone to say, you know, I really want to have sex with other people. But we signed a contract like that seems insane to me.

49:18Nicole Lapin:So the fidelity clause usually looks like what? If somebody cheats, you have to pay a penalty. Usually there's a penalty. Lower alimony. It could be that. That could be the penalty. It could be a lower alimony. It could be. I mean, there used to be in New York and many other jurisdictions. If you could prove adultery, the person couldn't ask for alimony. And that's why, like, the image of the divorce lawyer sitting next to the private investigator with binoculars and the camera, like with the telephoto lens, it's like ingrained in people's cultural memory. That's been gone for a really long time.

49:50And proving adultery in court is surprisingly difficult. Like in New York, we had to prove what's called inclination and opportunity. So inclination was you had to show that there was some tangible evidence other than the testimony of the paramour, the alleged paramour, the other person they're supposedly having sex with. Because they didn't want it to be able to be weaponized, like to call people as witnesses. So you had to have some third party evidence. It would be like a letter or be photographs of someone going in and out of a hotel or something. Something that shows that there was an inclination that they were attracted to each other.

50:22And then opportunity, meaning that they were somewhere where they could have had sex, which, by the way, is the funniest thing in the world. Because, you know, we've had cases where it was like, you know, a dentist having sex with their dental hygienist. But it's not like they were going into a motel. oh, they would just have sex in the dentist chair, you know, or in the office, you know, like people have sex in offices all the time. So it's going to be in that dentist chair. You don't want to be in that dentist. Yeah. But although, you know, there is it's lots of sanitary stuff around. I guess it's a sterile environment.

50:48Just not sexy. I've never been in a dentist's office and thought like, oh, yeah, you know, it's not really a sexy environment. But who knows? Maybe there might be dentist fetishes out there. You never know.

50:57Nicole Lapin:But there are some sex clauses, too. Like we have to have sex a certain number. You can put that in there. I mean, the question like as a lawyer, it doesn't matter what I know. what matters is what I can prove. So if somebody says like, oh, I want to put in a clause that talks about how often we have sex. How are you going to prove how often you had sex to make that clause enforceable? Like a clause in a contract that's not enforceable. Why have you know, or a ring though, is or a ring really going to know you're having sex? I mean, Apple watches, like sometimes you're having sex and it thinks you're doing yoga or going for a walk, you know?

51:26Okay. All right.

51:27Nicole Lapin:So we'll get off the prenup soapbox. Everybody should have one. Otherwise it defaults to your state. Well, everybody has one. It's just should be one that the two of you, right? You've seen anecdotally, though, that people who have prenups are less likely to get divorced. Yeah, look, it's an unfalsifiable premise. But what I'll tell you is the following, because the thing about prenups is they're not filed anywhere. Like, it's not like a it's not like it's on contract with the state and that it's like held somewhere and that you can look up someone's prenup. That's not how it works. Like the prenup is in the safe of the lawyer who drafted it and each party has a copy of it.

51:59Like that's where it is. Like I've seen celebrities on TV being interviewed saying how they don't have a prenup. And I'm like, yes, yes, they do. It's in my safe. Like I've joked that if TMZ went into the safe in my office, the Bolt safe, like there would be so much stuff in there because there's so many people's prenups and like thumb drives that have like video evidence of people. Like there's all kinds of chaos in there.

52:21Nicole Lapin:I would love to get into that. Yeah, I would leave me like it's fascinating that people who work for me have to sign NDAs all day long because there's you learn so much stuff and you never look at people like I can't watch TV because I invariably see somebody that I'm like oh he likes feet you know like I just know stuff about people that I wish I did who likes feet lots of people like feet apparently I don't know why it's not my thing but so I don't want to yuck anybody's yum it's none of my business if it makes you happy and it doesn't scare the horses I don't care um but the truth is there there are there are a lot of, you know, really personal things you learn as a divorce lawyer.

52:58I mean, about a lot of people like a huge cross section of humanity.

53:01Nicole Lapin:But I guess what you could infer is that if somebody can have that type of conversation going into the marriage, it's more likely to be successful. I believe I believe that because I believe having the prenup conversation is actually quite romantic because I think at its core, it's a conversation about what do we mean to each other and what do we owe each other? And, you know, there's a, there's a song by Prince. I was a big Prince fan. There's a great song by Prince off the album sign at the times called if I was your girlfriend. And it's a song sung by a man to his girlfriend. But the idea is if I was your girlfriend, like if I was friends with you, like instead of being your boyfriend if I was your girlfriend?

53:42And the lyrics are like, you know, would you let me dress you, help you pick out your clothes before we went out? Like, would you let me do your hair? Like, and it's just this like, how would our relationship be different if I was your girlfriend instead of your boyfriend? And one of the lines is, would you run to me if somebody hurt you, even if that somebody was me? And I always thought that was such a like romantic line, like the idea that someone would love you so much that they want to protect you from everything, including them, a future imagined version of them. And so to me as a man who wants a woman who I'm in a romantic relationship with to feel protected, like I want you to feel protected from everything, including me.

54:22Like I want you to feel safe in this world. Like I've represented victims of domestic violence. You can't feel loved if you don't feel safe. Like feeling safe is the most fundamental aspect of love. And so really what is love, but feeling like your heart is really safe with this other person. And so to me, like the most beautiful thing about being in love is that like, I'm gonna show you all the parts of me, even the parts that are weak and I'm ashamed of, and you're gonna say, oh, I see them and I love you anyway. Like what a lovely thing. What the best thing in the world that is, you know? So to me, like part of making someone feel safe is what do you need to feel safe in this relationship?

55:04And like I do a ton of prenups and I just finished one last week where, you know, it was starting to turn into like a heated negotiation because the lawyer on the other side was treating it like you would treat the negotiation attendant to a divorce, which is the total opposite of a prenup. like instead of two people that have decided they're ending their romantic relationship these are two people who have chosen each other out of the eight billion options and are now trying to like start this process so it created this like disconnect between the two people and they were like getting into positional bargaining where it was like well he wants this well i want this and it was like positions and you know i'm sure you're familiar with the story i used to teach a negotiation class at nyu and um it's the story of lemons do you know the Sorry about the lemons.

55:52So so if I'm talking to you, it's a it's a it's a it's a point about positional bargaining and why positional bargaining is inferior to principle based bargaining. So if I if I have a lemon and you want a lemon and I want a lemon. OK, but we only have one lemon. What's the fairest way to divide the lemon? Split it. Split it in half. Right. OK, that makes sense. No one would argue with that. Great. You wanted the zest for baking. I wanted the juice for lemonade. it. We could have had a hundred percent of what we wanted if we'd just taken a second and said, wait, what do you need a lemon for? But instead we just go, oh, well, let's cut it in half.

56:27And you, and you got half of what you needed and threw out the half that I wanted. And I got half of what I needed and threw out the half that you wanted. And we're all poorer for it. Why? Because we didn't say out loud, what are we doing? What do you need? What do you want? Right? So that's what a prenup conversation should be. It's a conversation about what are are you scared of? Like, what are you afraid of? And by the way, like as someone who's a fan of therapy and in therapy, I think the most powerful question you can ask when you decide to go to therapy is what is it I'm afraid to feel? Like, what is it I don't want to feel when I pick up a drink or I pick up a drug or I go to work for 14 hours a day and like, you know, just focus only on that.

57:06What is it I don't want to think about? What is it I don't want to feel? What do I want to get away from feeling, right? Right. What am I numbing with exercise or work or whatever your choice of drug might be? Right. So ask yourself, what is it? I don't want to feel. What is it I'm afraid of? And I don't think it's crazy if someone has a tremendous amount of resources for them to say, I'm afraid you're going to take these things I worked so hard to get. And the other person saying, okay, but I'm afraid that like, you're going to leave me and I'm going to have like foregone so many opportunities in reliance on the fact that you have so much and we're going to share it.

57:44Neither of those is crazy. Like those are both really fair things to be afraid of. So how, if we love each other so much that we're about to get married, can't I make you feel safe and you make me feel safe and we can figure out some accommodation between these two. And by the way, your prenup can be like your estate planning. Like whenever somebody says to me, like, I don't do wills, but if somebody says to me, oh, should I have a will? The answer is always yes. And if they say, when should I do my estate planning? I would say early and often. So do it as early as you can and do it frequently.

58:12Go back every couple of years and redo it. I mean, when you tell, I've listened to you, when you tell people to make financial plans, you don't say make it once and then set it and forget it and never think about it for the rest of your life. Constantly revisit it. Constantly look, does this still make sense? Am I applying a rule set that no longer makes sense for the circumstances of my life? So I think it's the same thing. Do your prenuptial agreement and then do addendums or modification agreements every couple of years when your family dynamic changes or your asset profile changes or your life circumstances change.

58:41It doesn't it can be like a marriage, a conversation that's an ongoing conversation.

58:46Nicole Lapin:How romantic. See, I told you doesn't have to be not. Can you also include financial infidelity? You can. I mean, look, in any contract, you can include all kinds of things. The question is, do you do it in a way that's enforceable? But yeah, I think that there should be some provisions. There can be provisions about maintaining certain financial transparency. What do you think is worse? Financial infidelity or sexual infidelity? See, I think they're the same thing. They're betrayal. They're betrayal. They're betrayal of trust. That's what they are. And they're a betrayal of trust very often motivated by the same underlying problem.

59:22Like, I've represented so many people that have cheated and so many people that have been cheated on. And not one of them ever got up and said, I'm going to screw up my life today. and I'm going to screw up the life of this other person who I'm going to have an affair with. And then I'm really going to screw up my entire family. I just think that'd be fun. Like no one does that. Like it really is that there's just some human need for attention, affection, desire. Someone's feeling unseen. Someone's feeling whatever there's. And again, I'm not saying that excuses it, but it explains it a little bit.

59:55And what happens is you make a series of small, bad choices. And then you get so far from shore that, well, I'm this far. I might as well keep going, you know. And that's how these things happen. But it's the same underlying issue, which is it's a series of bad decisions and bad choices, none of which seemed gigantic at the time you made them, and none of which were designed to screw your whole life up, but ultimately have that effect. So I think any kind of betrayal is very painful and it's hard to recover from.

1:00:23Nicole Lapin:What kind of financial fights or arguments in a relationship are most toxic? I mean, I think leverage is a big thing. like how, how willing someone is to extend credit and to be in debt. I think that's a conversation. A lot of people don't have about like, what is your comfort with a debt structure? Because those are two really big things. What does money mean to you? Like, what is it? Cause money is not about money. You know that. I mean, you talk about that all the time. Like it is about money, but it's not about money. It's not about the pasta. It's about a million things. Yeah. It's about well, as someone who grew up without money.

1:00:59I remember thinking money was essentially like a symbol for everything I didn't have. So if I had money, I would have stability and security and safety and I would feel worthwhile and I would feel successful. And how's that worked out? You know, you get money like it's it's nice. Like I've been broken. I've been rich. It's way better to be rich. It's really, really nice. But money offers you real solutions to imaginary problems and imaginary solutions to real problems. Like it's, you know, it's kind of like all technology. It's an improved means to an unimproved end.

1:01:32Nicole Lapin:Like it's money fixes money problems. Like some problems are very easily solved by money. And that is the greatest blessing in the world to not have to think about how am I going to pay for my health care? How am I going to like the fluctuation in the price of eggs does not affect my day to day life in the way that it used to. You know, like where it was like, OK, I have some choices I have to make. I can either have this or I can I can put gas on in my car and get to work or I can eat something other than ramen, you know, like or I can go out with friends and eat their coleslaw and pickles because I can't afford to order something at the diner.

1:02:07Like I've made those choices before. I, I, I've made the choice of, I can put money in my kids, five 29 this month, or I can put money in my 401k this month. Like I've made those choices before not having those choices is a beautiful, wonderful thing. The fundamental problems of life, my mother having cancer, I could throw all the money at that you want. I got her a slightly nicer room at Sloan Kettering, but it didn't solve the problem, right? Cause it can't like Like the problems of loneliness, it can't really solve that problem. And if anything, it can just, you know, really distract you from what your real problem is.

1:02:45Like I represent a lot of incredibly wealthy, very deeply unhappy people. Like many of whom have addiction issues, many of whom have mental health issues, many of whom have terrible issues with their children. Like money, we all know that. You don't have to watch that much, you know, Internet to see how miserable many celebrities are. It's why they're addled with addiction and mental health issues and constantly in legal trouble and constantly getting divorced because it doesn't solve those problems, those fundamental human problems. But is money still something of incredible importance? Does it bring great value?

1:03:21It can certainly upgrade your misery. You know, it definitely won't buy happiness, but it'll upgrade the quality of your misery.

1:03:26Nicole Lapin:That was part one of my conversation with James. Make sure you're subscribed to Money Rehab so that you can hear part two when it comes out in a few weeks.