Warming up to the prenup - East Valley Tribune: Get Out

Warming up to the prenup

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Posted: Tuesday, May 31, 2005 6:45 am | Updated: 7:32 am, Fri Oct 7, 2011.

Ask any bride-to-be about her big day and the conversation could last for hours. Tap into a groom’s prewedding jitters and he may yap all night.

But pose a simple question about prenuptial agreements and you’re likely to be answered with silence.

Lawyers, wedding planners and marriage counselors say prenuptial agreements aren’t just for the Donald Trumps and Catherine Zeta-Joneses of the world. They’re becoming more common among average 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 more and more.

Justin and Erica Foley of Cherry Hill, N.J., admit they had the conversation and have gladly signed a prenup.

‘‘Yeah, some of our friends were surprised,’’ said 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, upfront.’’

Erica, a software consultant, is 29 and owns a condo. Justin, 28, is an account administrator.

‘‘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 soand-so if we break up.’’

Dubin said her research suggests that 5 percent to 10 percent of couples marrying for the first time 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 U.S., couples are not required to file prenuptial agreements with any court, so there are no solid statistics on them. 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, and that people are waiting until their late 20s to tie the knot, said Courtney Knowles of the Equality in Marriage Institute.

He said calls to the institute concerning prenups have doubled in the last year.

Based 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 spouse-to-be 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 say 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, a lawyer who two years ago did substantial research on 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, a Philadelphia lawyer, 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.

Mahar disagrees.

A young woman, in particular, should think seriously about a prenup, she said. Especially if she plans to quit work and become a stay-athome mother.

‘‘You might find that you are 40, and you’ve been out of the work force 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 chairwoman 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 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.’’

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