death do us part" is still the language used in most weddings.
Couples enter marriage with the hope of making a lifetime commitment.
If this goal is not reached or if a spouse dies, the desire
to be a couple is so ingrained that most will marry again.
inability of the marriage laws to meet the needs of many couples
makes the concept of a marital agreement quite positive, despite
the bad publicity prenuptial
agreements have reached. The freedom to structure a
relationship should not be determined by laws that do not reflect
the changing realities of family life in American today.
is no firm tradition of marital contracts in our country because
of the inherent resistance of comparing love to a business deal.
Many civilized societies through the ages, however, have documented
marital agreements with written documents.
and the media have made couples aware of the concept of a contract
executed between a married couple, whether terming it a premarital,
prenuptial, antenuptial or postmarital agreement. The rich have
known about them for years, but middle-class America, alarmed
about the rising divorce rate, is anxious to know more.
about to enter a marriage who is concerned about the inadequacies
of the laws in the face of today's social realities;
who is remarrying;
Anyone concerned about protecting the assets of children from a prior marriage;
who has a financially dependent parent;
owners, particularly of professional practices and particularly
those with business partners, because a spouse effectively
becomes a silent partner in the business;
with significant separate property in states where a spouse
is entitled to a share of income from separate property.
whose intended spouse has significant premarital responsibilities,
such as alimony, child support, or tax obligations.
cautious enough to prefer a written record of the ownership
of assets to avoid confusion in the future from creditors
or other family members.
not romantic; it's practical.
And limiting a spouse's take upon divorce is far from the only
purpose, despite the perception gleaned from the popular press.
Doesn't it make sense to make decisions under the best of circumstances
instead of during the emotional upheaval of a troubled relationship?
with most things, there's good news and bad news about private
marital contracts. The openness needed for such an agreement
is good for a relationship; the implication of a lack of trust
is bad. A marital contract can avoid expensive and emotionally
debilitating divorce trials, but it's expensive to enforce any
contract in court. Such an agreement will reduce to writing
the agreement for division of property upon divorce, although
it can prevent a spouse from obtaining marital rights upon divorce.
Johnette Duff is the author of The Spousal Equivalent Handbook:
a legal and financial guide to living together, The
Marriage Handbook: a legal and financial guide to your spousal
rights, and Love After 50: the complete legal and financial