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What's Love Got To Do With It?
by Kate Yandoh
February 1, 2006
I
s Valentine's Day the perfect time to start thinking about a prenuptial agreement?
"Prenups are fairly essential for everyone now," says top divorce attorney John Mayoue, whose
client list includes Jane Fonda and Marianne Gingrich. "It used to be a male-driven document, but,
with women becoming more prominent in the workplace, getting wealthier, and having more to protect,
it's not at all unusual for a woman to be initiating the conversation about a prenup - and it's
exactly what she should do."
Prominent family attorney Tina Shaddix Roddenberry has also seen a rise in professional
women interested in prenups, although she notes that many come to that decision because someone
suggested it. "In the past, it was typically parents or grandparents advising a woman to consider a
prenup. Today, it's as likely to be her board members or corporate lawyer. Another common reason is
going into a second marriage with children to protect, especially in view of how Georgia law has
been changing significantly in the area of family law - and the trend seems to be that more and
more prenups are standing up to court challenges."
Still, according to a 2002 lawyers.com study, only 1 percent of Americans currently has a prenuptial agreement with a spouse or fiancé. A romantically inclined one in five "believe in true love and feel that a prenup is never needed when the two people involved really love each other."
"What's love got to do with it?" responds Mayoue, who is currently working on a book about prenups with the same title as a follow up to his 2004 Southern Divorce: Why Family Breakups have Fractured the South and How to Cope with It. "The divorce rate in 1960 was less than half a percent nationally. In a generation's time it's soared into the 60 percent range, with the highest rates right here in the 'church-going' South. It's not unromantic to set forth an understanding of what you want your marriage to be any more than it's unromantic to decide where you're going to live and what kind of house you'll buy."
Shaddix Roddenberry advises clients to take a similarly practical yet loving approach to bringing up the subject of a prenup. "You can explain that this is part of handling the business side of marriage. That you've worked for years and achieved things on your own, and you want to make sure that nothing happens to what you've built...not in an adversarial fashion, but as part of having the conversations you need to have if you want a strong, committed marriage that will last forever, and allow you both to share and grow together. It's a positive thing for both sides, but make sure you understand the complexities."
Like any contract, a prenuptial agreement can be as simple or complex as the drafters desire. Some of the standard provisions cover hard assets such as a house or vacation home, how marital money will be handled, if the prenup will change or 'sunset' over a period of time, and the amount of alimony to be paid in the event of the divorce.
Although he's definitely "not anti-lawyer," Mayoue doesn't believe a lengthy and costly legal process is required for a sound prenup. "I love the Internet. You can get samples, commentary and do-it-yourself forms that will fit for a lot of people. They can be relatively inexpensive documents. I prefer to have my clients get the basics down before we talk ... and you can definitely educate yourself without the expense of a number of office visits."
Shaddix Roddenberry suggests beginning a search for counsel by first finding "lawyers who do a lot of family law, who are members of the family law section of their local or state bar." You may also want to reference the American Academy of Matrimonial Lawyers, whose members have been admitted to the bar 10 years or more, have a 75 percent specialization in matrimonial law, and regularly pass exams on a wide range of matrimonial law issues.
Both lawyers agree on a few basic 'musts' of a prenuptial agreement:
The prospective husband and wife should have their own legal counsel. In addition to being fair, this also makes the prenup more enforceable since neither can later claim that they did not understand what they were signing. Both should provide full and honest disclosure of all assets.
Finally, bringing up the subject of a prenuptial agreement right before the wedding is never a good idea. Even though Georgia has no time limits on signing a prenup, meaning you could initial one the night before you head down the aisle (Mayoue once delivered one to a rehearsal dinner), the complex issues raised are generally better discussed without the emotion of wedding planning - and with ample time to think through and resolve them.
"Ninety percent of divorce is economically driven," says Mayoue. "That's true for the wealthy and less wealthy. While those with more means might be more concerned about the kind of legacy they want to leave, and those with less may be concerned with living in a way they can afford and to what extent they want to be burdened by debt, we can all buy things, we can all borrow and we can all choose to be voracious consumers - or not. So I don't think people should be offended by the concept of a prenup. It simply puts forth both people's understanding of what a marriage is and what it's going to be."
