With increasing frequency, people getting married for the second time are beginning their new lives together with two words. And they aren`t the traditional `I do.`
Instead, it`s `prenuptial agreement` that`s preceding their trip down the aisle.
The Chicago-based American Academy of Matrimonial Lawyers has no statistics on the increase in requests for the agreements that specify how a couple`s assets will be divided in the event the marriage doesn`t work out. But many marital lawyers both locally and nationally report they are drafting more, in some cases twice as many, than they did five years ago.
Michael Minton, an attorney with offices in Chicago and Inverness, said he believes his firm does as many prenuptials and postnuptials as any in the Midwest. (A postnuptial is similar in content to a prenuptial except that it`s drafted after the marriage.)
Minton estimates he is doing three to four times as many prenuptials as five years ago, and twice as many postnuptials.
Chicago attorney Bernard Rinella said his prenuptial volume has doubled in the past three or four years. And Grier Raggio Jr., a New York lawyer who is on the American Bar Association`s Committee on Marital Property, said similar increases can be seen across the country. Raggio didn`t want to quantify the increase in his own business, other than to say he now does 10 percent as many prenuptial agreements as separation agreements.
Attorneys attribute the prenuptial increase to another increase-the divorce rate. One out of two marriages now ends in divorce, and it`s these remarrying couples who make up the bulk of the prenuptial business.
”More people are remarrying with responsibilities that come out of the first marriage, children and so forth,” Raggio said. ”They want to protect that. And they also have a sense of mortality (about marriage).”
Profiles of people asking for prenuptials are similar: they`ve been married before, they have considerable assets coming into the marriage, or else they have children whose financial futures they want to protect. Prenuptials for young couples without much in the way of assets are rare.
And also unnecessary, said several attorneys. ”It`s not for everyone,” said Buffalo Grove attorney Howard Bernstein. ”It depends on what assets you have. They`re useful when you have two middle-aged people who have acquired some assets they want to go to their respective children. (Then the prenuptial can say) anything we have together will go to the survivor and anything we had before the marriage will go to the children.”
Prenuptials can`t include issues of child support, visitation or custody, but they can and do include provisions for alimony. Bernstein said he has written prenuptials that specify increasing amounts of alimony based on the number of years married, and the marriage must last a specific amount of time before any alimony would kick in if there was a divorce.
Bernstein said he is representing a man whose prenuptial was written this way. The ex-wife, though, is challenging the prenuptial in court, demanding $50,000 after a four-month-long marriage.
Beyond specifying alimony payments, the purpose of a prenuptial is to identify the non-marital assets (those acquired before the marriage) and isolate them from the marital assets (those acquired during the marriage) so that there are fewer questions about who gets what in the event of a divorce or death.
The agreements, though, can go beyond dollars and cents. They can include ”how you`re going to raise your children,” said Raggio, ”dividing household chores, dividing financial responsibilities. They can have a useful function in helping people clarify their expectations of each other and limit disappointment during the marriage.”
Perhaps they can do these things, but at least in the Chicago area, they don`t do them very often. Locally, attorneys say they deal almost exclusively with finances.
”It`s the business, the investments, the house,” said Wheaton attorney Harold Field. ”People can take care of the little things (like household chores) without the expense of a prenuptial agreement.”
University of Chicago law professor Mary Becker said there has been scholarly debate about the use of prenuptials as a tool to get marriages off on the right foot by including things such as the division of labor in the home.
”There`s been a lot written about the potential of the agreements to set up norms for the relationship,” Becker said. ”For example, saying he will do one half of the child care, but that doesn`t tend to be what the agreements are saying.
”They tend to be (more about one party) giving up their rights (to the money of the other party). They tend not to be egalitarian.
”I think it would be very good for people to do prenuptials because often they go into a marriage with different expectations. Women tend to have more egalitarian ideas.”
Women also frequently have romantic notions about marriage, as do their husbands-to-be, and those visions of bliss can get in the way when their attorneys are trying to convince them of the benefits of a prenuptial agreement. Sondra R. Fish, an attorney with offices in Chicago and Rolling Meadows, said she does some but not many prenuptials, partly because her clients generally aren`t wealthy enough to need them, and those that do need them don`t want to risk taking the romance out of their marriage.
”I`ve found it to be very difficult to talk people who need them into them,” said Fish. ”The response when I bring it up is, `I trust them` or `I don`t have that much to protect so I`m going to give it a shot.` ”
There`s no problem if both parties say no to the prenuptial. But when one person, usually the one with the money, wants it, and the other person is reluctant, the marriage can be placed in jeopardy.
”We`ve had some horrendous scenes here in the conference room,” said Rinella. ”A prenuptial has ruined more than one potential marriage.”
Traditionally, it has been the man who has the assets and therefore the man who is pushing for the prenuptial. But Fish said she expects the number of prenuptials to rise as more women gather considerable assets of their own.
”I really think we`ll be seeing an increase,” she said. ”The divorce process takes too long, and as women get on an equal footing (financially)
with men, you`ll see it happen more often because all of a sudden the romance won`t be quite as important and we`re going to want to protect our own futures and our children`s futures.”
Couples who can agree to get prenuptials need to follow some legal guidelines if they want the agreement to hold up in court in the event of a divorce. To pass muster in court, each party to a prenuptial should have his or her own attorney, the document should be signed well before the wedding day, there must be full disclosure of assets and it can`t be blatantly unfair to one party.
Minton said he has had to talk clients out of over-reaching more than once, because what the client is asking for would not be fair.
Bernstein has had similar experiences. He said, ”I`ve had (clients)
say, `don`t worry about it. She`ll sign it.` And I tell them, she may sign it, but it`s not good (not a good agreement.)”
Despite the increasing numbers of prenuptials, they apparently aren`t socially acceptable enough to be taken out of the closet by most couples. Those who have them don`t talk about them.
While couples might find a divorce attorney by word of mouth, said Minton, they don`t typically get an attorney to write a prenuptial that way. Instead, they are found in more quiet ways.
”People talk about their divorces but they don`t talk about prenuptials,” Minton said. ”Most people are embarrassed to say it takes something in writing to keep us together. But I think it`s a fact of life.”
