Say I do after the pre-nup

September 28, 2010

Americans are taking a cautious approach to marriage and are seeking more prenuptial agreements before walking down the aisle.

And it is not just the wealthy and famous who are looking to safeguard their assets when a marriage crumbles.
More women and middle-class couples are opting for prenups, which can also include adultery clauses, protection of retirement benefits and even custody of the dog, according to the American Academy of Matrimonial Lawyers (AAML), which represents more than 1600 lawyers.

"It's a planning tool. Given that half of marriages end in divorce it makes sense to plan," said Marlene Eskind Moses, the president of the AAML.

Nearly three quarters of members who responded to the AAML poll reported an increase in prenups in the last five years, and more than half said more women are seeking the legal agreements.
Once thought of as only for the rich and famous, prenups are appealing to all income levels but for different reasons.

"Sometimes it can be a prenuptial to protect against debt so that one is not responsible for debt their spouse accumulated before the marriage," Moses explained.

The legal agreements can also include clauses on financial arrangements such as budgets and whether the couple will have separate bank accounts.

More women are working now than in precious decades and they are earning higher salaries. Women comprised 46.8 percent of U.S. workers in 2009, according to the U.S. Department of Labor and that number is expected to rise to 46.9 percent in 2018.

"In our historically male-dominated culture women didn't control money and now they need to plan as much as the men. More women have more assets these days and have more control over funds," said Moses, a family lawyer with 30 years of experience.

SIGNING BONUS AND DATE NIGHTS

Linda Lea Viken, the president-elect of the association and a family attorney in South Dakota, negotiated a $1 million signing bonus for a client who leaving her job to be with her high-profile fiance.

"My client was giving up her career as an accountant to marry an up-and-coming basketball star. Of course with a basketball star you are going to be moving around a lot -- we call that lost economic opportunity. So I said I wanted a signing bonus, I figured they could understand those terms," said Viken.

In another case she prepared a prenuptial agreement that contracted who was entitled to the dog in the case of divorce.
"Some will even say, 'if the dog has puppies, I get the puppies," said Viken.
Adultery clauses have become more common and some couples are stipulating explicit expectations for their relationships in prenuptial agreements.

"Sometimes people put in conditions like the amount of sex they must have, and behavior in the marriage like the number of days a week one spouse can go out without the other. The sky is the limit in what people can contract," said Moses.

Lawyers have also noticed a spike in retirement benefits clauses in prenuptial agreements. Many AAML members have said they have been asked to include pensions and other retirement benefits more frequently in the last five years.

Although clauses stipulating intimacy and date nights may seem unromantic, Moses warns against forgetting about the very real consequences of divorce.

"People marry for love and that certainly is important but people also need to understand that it's a legal holding that affects their holdings. (It is) important to marry for love but to understand the ripple effect," said Moses.