“Till death do us part” is still the language used at most weddings. Couples enter marriage hoping to make a lifelong commitment. If this goal is not achieved or if the partner dies, the desire to become a partner is so ingrained that most will remarry.
The inability of marriage laws to meet the needs of many couples makes the concept of marriage agreements quite positive, even though prenuptial agreements have achieved bad publicity. The freedom to construct a relationship should not be dictated by laws that do not reflect the changing realities of family life in America today.
There is no strong tradition of contract marriages in our country due to an inherent refusal to compare love to a business deal. Many civilized societies throughout the centuries, however, have documented marriage agreements in written documents.
Celebrities and the media have made couples aware of the concept of a contract entered into between a husband and wife, whether it is a prenuptial agreement, pre-nuptial, pre-nuptial or post-nuptial agreement. Rich people have known about them for years, but middle-class America, worried about rising divorce rates, is eager to know more.
Who Needs Them?
Everyone who wants to get married feels concerned about the inadequacy of the law in dealing with the current social reality;
Anyone who remarries;
Anyone who cares about protecting the assets of children from previous marriages;
Anyone with financially dependent parents;
Business owners, particularly practicing professionals and especially those with business partners, as partners effectively become silent partners in business;
Anyone who owns significant separate property in a state where the spouse is entitled to a share of the income from the separate property.
Anyone whose potential spouse has significant premarital responsibilities, such as alimony, child support, or tax obligations.
Anyone is careful enough to choose a written record of ownership of assets to avoid future confusion from creditors or other family members.
It’s not romantic; it’s practical. And limiting spousal opinion on divorce isn’t the only goal, despite the perception gleaned from the popular press. Doesn’t it make sense to make decisions under the best of circumstances rather than during the emotional upheaval of a troubled relationship?
As with most things, there is good news and bad news about private marriage contracts. The openness required for such an agreement is good for a relationship; the implications of a lack of trust are bad. A marriage contract can avoid costly and emotionally debilitating divorce proceedings, but it is expensive to enforce any contract in court. Such an agreement would be reduced to a written agreement on the distribution of property at the time of divorce, even though doing so could prevent the spouses from obtaining marital rights after the divorce.
Love and law newsletter written by Johnette Duff, Lawyer*
Copyright 2003 by Johnette Duff
Ms. Duff is licensed in the State of Texas
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