A future husband wanted to be sure that if his marriage didn't work out, he could keep his treasured ice-cream collection safely stored away in a freezer. A woman insisted on verifying who would walk the dog. One man wanted the right to get a divorce if his bride-to-be gained more than 15 pounds once she became his wife.
These are some of the crazier clauses of prenuptial agreements. But make no mistake about it, what most of them are about is money—and how financial assets will be divided up if a couple divorces. And divorce, with its accompanying money problems, is common in the United States.
Prenuptial agreements—or "prenups"—are designed to address these problems as they arise. Prenups are negotiated by lawyers for the prospective spouses, and signed before a minister binds them in marriage. They have been gaining in acceptance in the United States since the early 1980s, when more states began passing laws that affected the division of financial assets in a divorce. The laws are based either on "community property" (split evenly) or on "reasonable distribution" (whatever a judge thinks is "fair").
The prenups of the famous make the headlines: Lawyers for Jacqueline Kennedy Onassis contested the prenuptial agreement between her and Aristotle Onassis after his death, reportedly winning $26 million in an out-of-court settlement.
But prenuptial agreements are also for lesser known, although wealthy, folks. "It's because divorce has such great economic consequences, and successive marriages have become so common," said a family law lawyer.
A typical candidate for a prenuptial agreement is a man who has accumulated considerable wealth, has already been stung once, and wants to reduce his exposure to future problems. "They want to make their own arrangements, rather than let a court decide," said the president of the New York chapter of the American Academy of Marriage Lawyers.
Protecting children from a previous marriage is a strong reason for prenuptial contracts. "Someone may have an estate of $1 billion and he may not want a second spouse to get a payment of half a billion. He may want more for his children," said a lawyer. The effort to shield assets to be passed on to children and grandchildren is making prenups more common among retired people
in their 60s and 70s who are remarrying after a spouse has died.
Another situation that calls for premarital agreement occurs when a potential spouse has, or is in line for, great inherited wealth or a family business, especially if the future partner has little or nothing at all.
But even when both parties have signed such an agreement, it can be impossible to enforce it in court if proper guidelines have not been followed. A lawyer is required to write the document, for mistakes in language—even a misplaced preposition—can be disastrous. But never, ever, warn marriage law consultants, should you use the same lawyer as your future spouse does.
Another problem is a prenuptial agreement signed under pressure. To avoid this, some lawyers will not draw up an agreement once a wedding date has been set. "I figure there's a sword hanging over their head, and that's pressure," said one lawyer. Such lawyers counsel their clients never to send out wedding invitations until both signatures are on an agreement.
But not everyone takes this advice. A classic example is cited: "An agreement is stuck under somebody's nose on the day of the wedding—and it's usually a 'she'—and she signs, but doesn't even read it." Another lawyer recalled one awkward episode where the two sides were still editing the contract, arguing over what to keep and delete, as 150 wedding guests were arriving for the wedding. When an agreement could not be forged, the wedding was canceled.
A dispute can also break out over prenuptial agreements if a couple decides to divorce while living abroad, or when they have different passports. A lawyer in a London law firm that often handles divorces for British-American couples noted that in Britain, prenuptial agreements were "just about ignored" by the courts because English law says that circumstances of a marriage aren't static, and therefore a judge should decide how financial assets will be divided.
That can lead to "court-shopping", since what matters is the law of the country where the couple is getting divorced. He gave the following example: "A wealthy Mr. Ed Smith gets married to Mrs. Smith, and they enter into a New York prenuptial contract. They live in England, and then decide to get divorced. English lawyers will say to Mrs. Smith, 'No, that contract is not valid,' while Mr. Smith will want it to be an American court case. The issue of where it will be held can greatly multiply the amount of time required to reach a settlement."
Romantic love has no bearing on this process, say these lawyers, who consider prenups to be business agreements. Their justification: Some 50 percent of all marriages in the United States end up on the trash heap.
Moreover, the discussions for a prenuptial agreement, which involve laying bare all one's finances, sometimes save a couple from a terrible marriage. "It sheds light on issues which could later widen and result in divorce," said a lawyer.
But there is still hope. "Many people sign an agreement, put it in a drawer and never look at it
again," the lawyer added.