Learn To Love The Prenup

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Learn To Love The Prenup
Contributor
Self

When I had my kids, I bought ipecac syrup to keep in the medicine cabinet on the off chance that one of them might swallow something potentially fatal. Twenty years later, the bottle's still there, its seal unbroken, my heart full of thanks.

We hope for the best, but prepare for the worst. Like any halfway intelligent person, we pay our insurance premiums, get our mammograms, fasten our seat belts, and go through life.

So what is it about a prenuptial agreement that sends the perfectly rational among us into a giant, collective cringe?

The evidence for their usefulness, accrued in countless lawyerly tomes and how-tos since the 1980s, is overwhelming.

We know that, in the U.S., half of all marriages will end in divorce. We know that none of those newlywed couples beaming with promise from the wedding pages dream a split is in their future. We know that when things go awry in an intimate relationship, they can go from harrowing to hideous, overnight. And we know that under the cold, steely gaze of the law, fairness can be reduced to a fairy tale.

And yet, when one person in the relationship brings up the notion of a prenuptial agreement, it's like, well, offering up a shot of ipecac even though there's no poison in sight. Keep Reading...

"You find yourself wondering, 'Well, if we're talking about a prenup, then why are we getting married?'" says one newly engaged woman, who has had a few tense conversations with her fiancé about the subject. "If you're looking for an escape hatch, then let's not do it." Engaged & Confused: Overcoming My Fear Of Marriage

"It's a very, very heated and difficult issue for most people," agrees relationship therapist Janis Altman, who, in her three decades of practice in New York, has seen engagements broken over prenups. "Though it really is about finances, it's riddled with emotion. People think, 'Oh my God, doesn't he trust me? Doesn't he love me? Does he think we're going to get divorced?' Some look at it as a paper filled with doom and gloom."

Doom and gloom is right. Statistics be damned; why plan for the end if you're determined it's never, ever going to happen to you?

As a recent headline in Psychology Today asks: "Is it possible that a prenup, while pretending to be your ally, can actually 'sow the seeds' of divorce?" If that's not enough to drive even the most optimistic among us to a box of chocolates and a sad movie, not to mention a really bad date with our favorite person, I don't know what is. How in the world can something be so right, but feel so wrong?

Nuptials are supposed to be some kind of bacchanalian lovefest of food, dancing, fabulous formalwear, and socially sanctioned sex. Anything "pre" that seems like it should at least involve fresh flowers and a punch bowl.

But a prenuptial agreement is a dry, signed, and preferably notarized sheaf of papers prepared by attorneys for a few thousand dollars, a document whose popularity, some lawyers say, has doubled in the last five years. A stack of what-ifs whose creation and discussion, as certified family-law specialist Bob Nachshin will tell you, has made grown men cry as they sit in their attorneys' offices.

And, instead of being a threat to anyone's dream of true love and happily-ever-after, it's really more of a blueprint for the business end of your life together. For an increasing number of women, particularly women with homes, businesses, stock, careers, and kids from previous marriages, the prenup is becoming one of those things you just have to hold your nose and get through.

Done right, and according to the laws of your state, it can actually help you sleep better. And the process may even yield some very revealing—and critical—insights about the person you're planning to marry. 10 Questions To Ask Before Saying I Do

"I see a lot more women," says Nachshin, who cowrote, with Scott Weston, I Do, You Do … But Just Sign Here, and who successfully represented Barry Bonds in the athlete's landmark California Supreme Court battle with his first wife. "It used to be that only men wanted agreements, and women were being forced into them, but with the advent of women in the workforce—and many of them doctors, lawyers, business owners, execs, and so on—a lot of women want to protect themselves." He pauses. "I think you're crazy if you don't have one."

No one will deny that prenup-land can be a weird space, pioneered by weird people—namely, the rich, famous, and eccentric. Take the case of Giants slugger Bonds, who had his first wife, Sun, sign herself out of his future earnings on the way to board a plane for their wedding (a practice that the state of California now rejects, requiring instead seven days between the signing and the nuptials). When they signed the agreement in 1987, Bonds was earning $106,000 a year with the Pittsburgh Pirates. By the time of their messy split in 1994, he was making $8 million.

Then there's Catherine Zeta-Jones and Michael Douglas, who are rumored to have a bad-boy clause, wherein Douglas will pay his wife a specified sum if he's unfaithful. (I hope it's millions.) J. Lo reportedly had the same idea, before her engagement to Ben Affleck imploded, writing in a bad-Ben clause if he stepped out of Bennifer bounds.

In the famous Marla Maples–Donald Trump case, the young and, some would say, naive girl from Georgia ended up with a smidgeon of the tycoon's wealth because the prenup required four years of marriage before she became a full partner, and she got caught messing around with her bodyguard a few weeks shy of the mark.

Equally appalling stories come from the monied and celebrated who don't have prenups. Director Steven Spielberg had only a paper napkin containing a sketched-out prenup; it didn't hold up in court because Amy Irving had no lawyer present when she signed it. Spielberg ended up paying his ex-wife what was at that time a record $100 million. "People, at the start of a marriage, really think Cinderella, and are caught off balance," Janis Altman says of the dreamy optimism that's the hallmark of so many unions.

It doesn't help the prenup's rap that some couples have wrapped bizarre clauses around issues that would be better suited to a therapy session. Nachshin, who's drawn up thousands of agreements in celebrity-rich southern California, has seen it all: substance abuse, gambling addiction, whether the toilet seat is left up or down, how much football is watched on Sundays.

One couple spelled out provisions for dividing their Lenox china set; another dealt with adultery by giving all frequent-flier miles to the injured spouse. In his 28 years of working with the rich and famous, Nachshin has heard of agreements that pay a wife $100,000 for each child carried, or fine a husband $100,000 for each instance of being "rude or cruel" to the wife's parents or late to events.

Some prenups even tackle weight gain, with financial penalties if a certain notch on the scale gets crossed. As he and Weston write in their book: "Putting a prenuptial agreement together can be as eclectic as decorating your house… You can practically make up your own rules." Advice: I Want A Prenup, He Doesn't

True enough, I'm thinking, but you can also paint your house the color of guacamole, can't you? And since when does any grown-up get married hoping the other person will change? Altman agrees that an attempt at behavior modification, via a contract, probably isn't the right spirit to bring to the table, let alone the relationship.

"When a prenup becomes punitive, that's really unhealthy for the marriage. It should be about securing assets, not about daring you to be a certain way. When you have negative overtones, trust gets eradicated," she says. "Then, really, what are you left with?"

If things do go awry, you know what you're going to be left with: guilt, shame, a feeling of failure, the loss of love. Why add financial haziness—or craziness—to the picture? In today's world of startups and stock options, intellectual property rights and screenplays, even a person who thinks he or she is coming into a relationship with little might end up having a lot. Once primarily the tool of rich men trying to avoid paying spousal support to ex-wives, prenups now cover new and barely charted territory. 

Take the case of Kathy* and her husband, Bill*. They started out as hardworking career people with promising futures—she with a Harvard MBA, he with a law degree from Cornell. Like many couples in New York, they figured that a typical community-property arrangement (in which both people get to keep the property they started with, and split equally what has accumulated during the marriage) would be adequate. But life took some unexpected, though not unheard-of, turns.

Kathy's employer started doing phenomenally well, doling out generous bonuses in the range of $800,000 to $1 million a year to top execs. Kathy, a financial manager, realized the potentially short-term nature of this windfall and scrupulously stowed most of the money in special accounts.

Fast-forwarding a few years, the couple started having marital problems. When they decided to divorce, it turned out that their base salaries were a wash, but Kathy's hard-earned bonuses—and interest—were up for grabs. She argued that they were not simply her own earnings, but a result of savvy investing and some of the best and brightest working years of her life.

Her husband felt the money was a lucky break that the couple should share equally. If the tables were turned, he argued, and he'd gotten the bonuses, she'd want half. (Need I mention that she scoffed at this?) Without a prenup spelling things out, the courts saw things his way.

Entrepreneurial endeavors are another tricky area. When marriages end, the collective booty can involve products, entire companies, and even the right to sell products under a person's name. Amy*, a cosmetologist who married a dermatologist in 1987, tells how she worked in tandem with her spouse for more than a decade to create a large operation in cosmetology and skincare.

As she puts it now, "When you start out in the beginning with a first marriage, you don't even think of a prenup. We went into the marriage with nothing other than the dream to build something." The couple's empire, which became wildly successful, included businesses Amy started under the umbrella of her husband's practice.

By the time their 15-year marriage crumbled, the companies were deeply intertwined. Because her husband had owned the practice at the start, and her businesses were added after the marriage, he got to keep his ventures—but she ended up having to divide hers, 50-50.

"Everything I would have had a chance to make money from was valued low, and everything he had was valued high," she recalls of the court's decision. She was blown away. In the end, she felt forced to let her ex buy her out of her companies, one of which bore her name. "I can't even use my own name now on a business," she adds, with a chuckle not entirely devoid of bitterness. "There's a lesson for other women to learn here." Divorce Insurance: Depressing Or Practical?

As more people bring children from prior marriages into new relationships, they're finding that prenups are a good way to make sure their kids are covered as well. State laws differ, and a will may not protect them enough. For example, if a parent dies after marrying a new spouse, what would have been that person's half of the marital assets will be passed along to the spouse, not the kids.

There's also the more amorphous issue of caring for the children during life. As more women opt out of the workforce, the right prenuptial agreement can inject some economic parity into the world of the stay-at-home mom. Wives (or husbands, for that matter) who take years away from their professions to raise kids can be guaranteed financial compensation for their efforts if the marriage ends—and they're suddenly high and dry, with no breadwinning spouse or career track.

Ditto for women who've worked to put a spouse through school, another common situation where a prenup can add fairness that's not currently built into the legal system. Back when spousal support—a.k.a. alimony—was standard, this might have been unnecessary. But in today's climate, a woman who has financed her husband's eight years of medical school, only to have him leave her two years after graduation, could easily be denied any compensation by the courts.

And prenups increasingly are being used to steer a more sane course for those who, instead of children, have pets dear to their hearts. While the state courts keep a firm grip on child-custody and support matters, pets are another matter. Ditto for their vet bills, vaccines, visitations, and more other particulars than anyone who isn't a lawyer can imagine. After A Breakup Who Gets The Dog?

A carefully crafted, fair, and balanced prenup can take care of lots of things the courts of various states won't, so if it only costs a few thousand bucks, why not get one? Plenty of people still worry that a prenup, by creating an escape clause, somehow preordains divorce. But isn't that like blaming a safe and well-lit emergency exit for the emergency?

"It's ridiculous," says psychotherapist Janis Altman. "If anyone in this day and age, with the current divorce rate, thinks life isn't going to change them, they're in LaLa land. Really crazy stuff happens, and if they can't handle a piece of paper, how are they going to handle cancer or crazy stepkids or 'I got fired'? It's really about: Life happens—deal with it."

But what about the person on the brink of commitment who says, "Prenup? I'm outta here." "That's not someone you want to marry," Altman maintains. "Because, when that happens, you have to ask yourself what their agenda was in the first place."

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Advocates—including a growing chorus of marriage counselors—say that if both parties bring a spirit of honesty and fairness to the table, a prenup can be a good thing for a relationship. As Bob Nachshin and Scott Weston put it in their book, "Marriage, after all, is a give-and-take process, and negotiating differences in the prenuptial agreement is good practice for other issues that will present themselves along the way." Altman is more blunt: "If you can't get through the prenup process together, you probably can't get through a marriage, either."

The behavior of a potential spouse during prenup discussions and negotiations is often extremely revealing. Altman relates how one client broke off her engagement when she learned her fiancé was unwilling to continue raising her toddler twins in the event of her death. "I think a prenup is very indicative of how a relationship might turn out," she says.

Lovers turn out to be unwilling to share a dime, make allowances for changes, or even deal with their own debt. They get pressure from their relatives, who don't want a new spouse to end up with a share of the family business. Will your future partner stand up for you or buckle under pressure? Will he or she be willing to make sure your kids are covered in any eventuality? Tempting as it is to avoid the whole mess, you have to ask.

"There's a poignant moment when one person is doing something with such negativity that an outside party says, 'Whoa, you need to rethink this. I get a feeling this is going to hurt you in the long run,' " says Altman. "I say, better to find out before the invitations go out."

"My advice is to not even announce you're going to get married until you have a prenup," says Nachshin, "because once you have it, you really don't think about it anymore."

Altman recommends starting the discussion before you actually get engaged. That way, no one feels blindsided—and there isn't the pressure of a date or deadline. (As for postnuptial agreements, executed after marriage, Altman says that they often cause more problems than they solve, and legal experts agreed.)

When it all seems so basic and so reasonable, do you really need lawyers? Well, yes, because if you do it yourself—and the internet is happy to help—you risk painting yourself into some weird legal corner where you're worse off than if you'd had no agreement at all.

Things vary from state to state (some, but not all, have adopted the Uniform Pre-Marital Agreement Act). Like Spielberg's napkin, homemade prenups may not stand up in court anyway, so if you're going to do it, you might as well do it right.

In fact, experts urge that each party have his or her own lawyer. "Interview three or four," advises Nachshin. "Get somebody who your [future] spouse's lawyer can work with; you want to avoid antagonism." Ask them, he insists, how many prenups they've handled. "The lawyer who drafted Barry Bonds' first agreement had never drafted one before," he says, with the hindsight of a man who later had to defend it in court.

And, speaking of protocol, do you need to tell your friends or family about your prenup? Only if you want to complicate things. "Once you bring it into the family structure, you'll get five opinions," says Altman, "which can create static and misinformation."

Honesty is key. Each person needs to spell out exactly what they're bringing into the relationship, both good and bad. If there hasn't been full disclosure by one of the parties, the court may throw the entire agreement out. Everything gets laid on the table—debts, inheritances, and assets—so there are no surprises. And the process reveals which values are ultimately the most important, like compassion, caring, and fairness.

A happily prenupped and married woman named Melissa describes a best-case scenario: She and her husband talked about their prenup even before they announced their engagement. "That was ten years ago," she says. "At the time, a friend of mine said, 'That's the most loveless thing. It's so cold.'

But we were grown-ups who had some of our own stuff outside the marriage as well as our own careers, and we really married for love. We didn't have any craziness, and we essentially agreed that what's yours is yours, what's mine is mine. I always say that, God willing, we'll never have to refer to it—and we never have."

Prenups should be thought of as living documents, though. Women end up raising kids instead of developing a career, the struggling author becomes a best-selling screenwriter, a business grows or busts. Some things won't become clear until later in the union. What We Wish We'd Known Before Getting Married

Attorneys advise couples to revisit the agreement and update it as necessary. "As people change, the prenup should change," says Altman. At some point, she adds, after you've been happily married for 25 years, you can tear it up.

Call me a hopeless romantic, but that sounds like a worthwhile goal.

*Names have been changed.