Many couples headed for the altar during June, the busiest month for weddings, will have exchanged written vows on a possible future division of assets well before they exchange rings. The prenuptial contract, a marriage custom once confined largely to the rich, is being co-opted by the middle class.
And why not? The experience of recent years shows that roughly one of every two marriages will end in divorce. When a split becomes inevitable, a prenuptial agreement can shield the financially more vulnerable spouse from a court-imposed settlement that he or she may regard as unfair.Even granting this to be so, however, many engaged couples are reluctant to make detailed plans for postmarital contingencies. After all, the act of drafting a legal document is apt to impart a chill to the most ardent courtship. Consequently, lawyers who specialize in such matters advise couples to complete arrangements months before the wedding ceremony. That way, bruised feelings get a chance to heal.
Some couples approach the task with feelings already bruised by previous marriages. Before tying the knot a second or third time, divorced persons often want to make absolutely sure that their existing children inherit specified items of property. The National Center for Health Statistics reports that, in about 45 percent of all new marriages, one or both spouses were married before.
Although prenuptial contracts tend to vary greatly from couple to couple and from state to state, a degree of nationwide uniformity may be emerging. The Chicago-based National Conference of Commissioners on Uniform State Laws has drafted a Uniform Premarital Agreement Act, which has been adopted by 13 states - Arkansas, California, Hawaii, Kansas, Maine, Montana, North Carolina, North Dakota, Oregon, Rhode Island, South Dakota, Texas and Virginia.
John McCabe, the conference's legislative director, says that in those 13 states, "you can draft a prenuptial agreement to do just about anything you want it to do." Once the agreement is submitted to a court in connection with a divorce action, "it would be enforceable according to the standards set forth in the act."
One of those standards calls for full disclosure of all assets. But even in states that do not adhere to the act, failure to list all assets, liabilities and obligations on both sides exposes a prenuptial contract to heavy risk of invalidation in court.
Lawyers especially recommend drawing up prenuptial contracts in the nine states with community property laws - Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. In those states, property acquired by a husband, wife or both together is considered by law to be jointly owned and equally shared.
As a result, it is important that the prenuptial agreement list each partner's separate property - assets owned prior to marriage or acquired afterward through gift or inheritance. Making such a list before memories fade can help to forestall a good deal of the acrimony that typically arises during divorce proceedings.