Ask any bride-to-be about her big day and the conversation could
last for hours.
Tap into a groom's pre-wedding jitters and he may yap all
night.
But pose a simple question about prenuptial agreements and you're
likely to be answered with stone-cold silence.
Lawyers, wedding planners and marriage counselors say prenuptial
agreements aren't just for the Donald Trumps and Catherine
Zeta-Joneses of the world anymore. They're becoming increasingly
common among common folks.
But nobody wants to talk about it. It's like suggesting a funeral
plan when grandma sneezes.
"It's considered tawdry," said Arlene G. Dubin, a partner in the
New York law firm of Sonnenschein, Nath & Rosenthal and author
of Prenups for Lovers. "People getting married like to
believe that all they need is love. When you bring up something like
money, you're injecting an unwelcome note of reality into a time
that is all about fantasy."
Still, Dubin is convinced the conversations are taking place. In
private. More and more.
Justin and Erica Foley of Cherry Hill admit they had the
conversation, and have gladly signed a prenup.
"Yeah, some of our friends were surprised," admitted Erica Foley,
who said "I do" this month. "They think if you do this you are
acknowledging that there will be a problem. But, I actually think we
are going to have more staying power because we got everything out
on the table, up front."
Erica, a software consultant, is 29 and owns her own condo.
Justin, 28, is an account administrator for Vanguard.
"Our agreement is pretty basic," she said. "We decided that
whatever we bring into the marriage we are entitled to take back. We
didn't get into anything like you owe me so-and-so if we break
up."
Dubin said her research suggests that 5 to 10 percent of couples
marrying for the first time now enter prenups, and 20 percent of
couples remarrying enter them.
"I think by 2020, it'll be up to 50 percent," she said.
Of course, Dubin's research is strictly informal. In the United
States, couples are not required to file prenuptial agreements with
any court, so there are no solid statistics on how many actually
exist.
But Dubin is not alone in her perception that the pre-wedding
contract is on the rise.
Chalk it up to the number of second marriages, or the fact that
young people marrying for the first time are waiting until their
late 20s to tie the knot, said Courtney Knowles, spokesman for the
Equality in Marriage Institute.
He said calls to the institute concerning prenups have doubled in
the last year.
Headquartered in New York, the institute is a nonpartisan,
nonprofit organization founded by Lorna Wendt. Wendt, you may
recall, was the woman who made history with her 1997 divorce from GE
Capital's chief executive officer, Gary Wendt. She claimed that
being a corporate wife for 32 years entitled her to more than just
the $8 million-plus alimony that her husband offered her.
She demanded half the $100 million she estimated was her
husband's financial worth. Ultimately, the Connecticut Superior
Court awarded her $20 million, and she went on to establish the
Equality in Marriage organization, which provides financial, legal
and family planning help to couples.
Her advice?
Marriage is not only a social and religious contract, but also a
legal and financial one, and you should prepare accordingly.
For example: Does your fiance have unpaid student loans? Do you
want to share that debt?
Do you have a novel you've spent 10 years writing? Do you want to
split the profit with your ex when it becomes a best-seller?
Did you work to help put your spouse through medical school? What
portion of her future earnings are you entitled to?
Those are just some of the issues that experts believe should be
thoroughly discussed before a walk down the aisle.
Still, the mere mention of the p-word gives lots of engaged
couples the creeps.
In a recent survey of 1,000 people, the institute found that 67
percent "would not even consider the possibility of a prenuptial
agreement or marriage contract." Which comes as no surprise to
Knowles.
"There's a notion that the act of creating a prenup represents
some sort of mistrust, that it means you don't trust the marriage
will last," he said. "But every day we get into our cars and put our
seat belts on. Not because we're convinced we're going to crash that
day, but because we know accidents happen."
The romantic in all of us wants to believe our marriage will defy
the odds.
But according to the National Center for Health Statistics, 43
percent of first marriages end in divorce within 15 years. And that
number jumps to about 70 percent for second marriages.
"People know the numbers, but they believe their chance of
divorce is zero. Even law students," said Heather Mahar, an attorney
who two years ago did substantial research into prenuptial
agreements at Harvard Law School.
"What happens is, in divorce people end up dividing their assets
when they are bitter and trying to hurt each other," she said. "With
a prenup, they'd negotiate when they're happy with one another and
loving toward each other."
So who should sign on the dotted line?
Experts can't seem to agree.
Some say everybody, regardless of income or age.
Others recommend only older couples who already own property or
stocks, or are marrying for a second time.
Judith Widman, an attorney in Center City, said she doesn't think
young lovers who own only a sofa and a beat-up Honda need to
consider a marriage contract.
"It would be a waste of their time," she said.
But Mahar disagrees.
A young woman, in particular, should think seriously about a
prenup, she said. Especially if she plans to quit work at some point
and become a stay-at-home mom.
"You might find that you are 40, and you've been out of the
workforce for 18 years, and you've spent most of your time
supporting your husband's career," Mahar said. "Are you entitled to
any of his future earnings? A court may not think so."
"When somebody is 25 they may say, 'I don't want any of your
money,' but when they are 55 they may feel differently," added
Phyllis G. Bossin, former chair of the American Bar Association's
Family Law Group. "A wife should make sure she's not in a situation
where she's without money unless she puts her hand out."
In Prenups for Lovers, Dubin writes: "Some judges believe
they should order no more than one-third of a man's income toward
the support of his ex-wife and children on the theory that the man
will need the income to support his new family."
That, she said, is because 41 states (including Pennsylvania, New
Jersey and Delaware) and the District of Columbia currently rely on
"equitable distribution" laws to divide assets during a divorce.
Those laws essentially give the court power to decide what a "fair"
settlement might be.
"But with a prenup," Dubin said, "a couple can take matters into
their own hands."
Dos and Don'ts
Do consider a prenup if you have children from a previous
marriage, if you own your own business, or if you don't want to
share your intended's current debts.
Do get legal assistance. You can find templates on the
Internet for free, but it's best to get a lawyer's help for the real
deal.
Do start talking about your prenup six to eight months
before the wedding. This should not be a last-minute
negotiation.
Don't assume prenups protect only the partner with money.
They are designed to protect both partners in a marriage.
Don't present a prenup as an ultimatum. The agreement to
enter a prenup should be mutual.
Don't both use the same lawyer. Each partner should hire
independent legal counsel.
Resources
A few places to find advice:
Books
Prenups for Lovers: A Romantic Guide to Prenuptial Agreements by
Arlene G. Dubin (Villard, $14.95).
Prenuptial Agreements: How to Write a Fair and Lasting Contract
by Katherine E. Stoner and Shae Irving (Nolo, $34.99).
How to Write Your Own Premarital Agreement: With Forms(part of
the Legal Survival Guides series) by Edward A. Haman and Ed Haman
(Sphinx Publishing Inc., $24.95).
I Do, You Do ... but Just Sign Here: A Quick And Easy Guide To
Cohabitation, Prenuptial and Postnuptial Agreements by Scott N.
Weston and Robert J. Nachshin (Execuprov, $14.95).
What to Do Before the I Do: The Modern Couple's Guide to
Marriage, Money and Pre-nups (What to Do Before I Do) by Nihara
Choudhri (Sphinx Publishing Inc., $14.95).
Web sites
http://www.equalityinmarriage.org/
Nonprofit organization with marriage and divorce advice.
http://www.bankrate.com/
Financial information Web site.
http://www.theknot.com/
Wedding planning information.
http://www.gettingremarried.com/
Information for remarriage.
