Prenuptial Agreements

By Johnette Duff

"Til death do us part" is still the language used in most weddings. Couples enter marriage with the hope of making a lifetime commitment. If this goal is not reached or if a spouse dies, the desire to be a couple is so ingrained that most will marry again.

The inability of the marriage laws to meet the needs of many couples makes the concept of a marital agreement quite positive, despite the bad publicity premarital agreements have reached. The freedom to structure a relationship should not be determined by laws that do not reflect the changing realities of family life in American today.

There is no firm tradition of marital contracts in our country because of the inherent resistance of comparing love to a business deal. Many civilized societies through the ages, however, have documented marital agreements with written documents.

Celebrities and the media have made couples aware of the concept of a contract executed between a married couple, whether terming it a premarital, prenuptial, antenuptial or postmarital agreement. The rich have known about them for years, but middle-class America, alarmed about the rising divorce rate, is anxious to know more.

Who Needs Them?

Anyone about to enter a marriage who is concerned about the inadequacies of the laws in the face of today's social realities;

Anyone who is remarrying;

Anyone concerned about protecting the assets of children from a prior marriage;

Anyone who has a financially dependent parent;

Business owners, particularly of professional practices and particularly those with business partners, because a spouse effectively becomes a silent partner in the business;

Anyone with significant separate property in states where a spouse is entitled to a share of income from separate property.

Anyone whose intended spouse has significant premarital responsibilities, such as alimony, child support, or tax obligations.

Anyone cautious enough to prefer a written record of the ownership of assets to avoid confusion in the future from creditors or other family members.

It's not romantic; it's practical. And limiting a spouse's take upon divorce is far from the only purpose, despite the perception gleaned from the popular press. Doesn't it make sense to make decisions under the best of circumstances instead of during the emotional upheaval of a troubled relationship?

As with most things, there's good news and bad news about private marital contracts. The openness needed for such an agreement is good for a relationship; the implication of a lack of trust is bad. A marital contract can avoid expensive and emotionally debilitating divorce trials, but it's expensive to enforce any contract in court. Such an agreement will reduce to writing the agreement for division of property upon divorce, although it can prevent a spouse from obtaining marital rights upon divorce.