"Till death do us part" is still the phrase used in most weddings. Couples enter into marriage with the hope of making a lifetime commitment. If this goal is not reached or if a spouse passes away, the desire to be part of a couple is so ingrained that most people tend to marry again.
Despite the bad publicity premarital agreements have received, the inability of modern marriage laws to meet the needs of many couples makes the concept of a marital agreement quite positive. The freedom to structure a marital relationship should not be determined by archaic laws that do not reflect the changing realities of American family life today.
There is no firm tradition of prenuptial agreements in our country because of the inherent resistance to comparing love to a business deal. But many civilized societies through the ages have documented marital agreements with written documents.
Celebrities and the media have made most couples aware of the concept of a contract executed between a married couple, termed as a prenuptial, premarital, antenuptial, or postmarital agreement. The wealthy have known about premarital agreements for years, but middle-class America, alarmed by the rising divorce rate, is eager to know more.
Who needs a prenuptial agreement?
Prenuptial agreements aren't romantic - they're practical! And limiting what assets a spouse may be entitled to in the event of a divorce is far from their only purpose, despite the perception created by the press.
- Anyone who is 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 getting remarried
- Anyone concerned about protecting their children's assets from a prior marriage
- Anyone who has a parent who is financially dependent
- Business owners, especially of professional practices and those with business partners (a spouse automatically becomes effectively a silent partner in the business)
- Anyone who holds significant separate property in a state where a spouse is entitled to a share of income from that separate property
- Anyone whose future spouse has significant premarital responsibilities, such as child support, alimony, or tax obligations
- Anyone who is cautious enough to want a written record of the ownership of assets in order to avoid future confusion by creditors or other family members
Doesn't it make perfect sense to make important decisions under the best of circumstances rather than during the emotional upheaval of a troubled relationship?
As with most things in life, there's good news and bad news about private prenuptial agreements. The openness required in order to reach such an agreement is good for a relationship, but the implication of a lack of trust is bad.
A prenuptial agreement can avoid expensive and emotionally debilitating divorce trials, but it's fairly expensive to enforce any contract in court. Such an agreement will reduce to writing the mutual agreement for division of property upon a divorce, although it can prevent a spouse from obtaining marital rights upon divorce.
About the author:
Johnette Duff is a matrimonial attorney licensed in the state of Texas. She is
also the author of three books on love and the law: The Spousal Equivalent
Handbook, The Marriage Handbook, and Love After 50.
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