June 2003
To have or not to have. That is the question more and more frequently asked by many couples or, to be more accurate, more frequently, by one of the two members of the soon-to-be-married set.
Interestingly, the age barometer is descending. Once prenuptials were almost the exclusive preserve of the second marriage group, a group trying to preserve their wealth for their children and/or to protect their assets from a future divorce. Burnt once by loss of assets to divorcing spouses, this group vows to be proactive. The intent is to insulate themselves from the angst of divorce negotiations by foreordaining who will or will not get the booty. Today, however, while the previously married of the betrothed are still the predominant prenuptial advocates, they are being joined in growing numbers by the first time married set. This new group is composed of those who worry about divorce, particularly if they have or are anticipating being benefactors of moneys or assets from gifting or inheritances. Parents of grooms and brides increasingly request or, even demand, proof that moneys given or bequeathed to their kids will not find their way into the estates of in-law children.
And, so the demand for prenuptials is growing. And, too, there is much to be said for its advantages.
Terms can be negotiated when the parties are on good terms. There is no vindictiveness or anger, perhaps not even the fear that often accompanies divorce actions.
In theory, two rational, well-intentioned adults can calmly view the present state (or more accurately estate) of affairs and determine how it will be divvied up upon divorce or death. Two unpleasant events, to be sure, but possibilities that cannot or should not be ignored. In actuality, it is often true that one of the partners is not a willing participant. Typically, the less well-healed member resents the cold focus on dreaded future events. They feel the chill of bad omens and resent their prospective spouse’s willingness to downplay their future well being. The February 8, 2002 ruling of the Supreme Judicial Court in DeMatteo v. DeMatteo is even more foreboding. Prenuptials do not have to be based on the rules of equity that pervade divorce actions. Agreements entered into prior to marriage by two, legally represented parties, will be upheld in the event of divorce or death. No amount of “I did not understand,” “I did not think carefully” can erase the court’s willingness to uphold an agreement entered into prior to the marriage with full disclosure and legal representation. As such, those entering in prenuptials need to have thoughtful guides; they need to craft an agreement that each partner can live with in the event of the unthinkable divorce or death. Their agreements may well be invincible.
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