“I firmly believe it is wise for couples to draft prenuptial agreements even if the courts do not currently uphold them. If enough couples begin clogging the courts with cases regarding marital contracts, the courts will be forced to recognize the need for such contracts.”

Susan M. Mumm (1995) The Rituals Resource Book--Alternative Weddings, Funerals, Holidays & Other Rites of Passage. Ann Arbor, Michigan: Alexandra Yul Publishing, p 33.

Gee--it’s nice to be right about one’s predictions occasionally!!! That is exactly what happened. More and more couples wrote prenuptial agreements and pressured the courts to uphold them, and the courts eventually conceded that prenuptial agreements were valid. Prenuptial agreements are becoming more and more common and are, in general, upheld by the courts.

Having the courts support and enforce prenuptial agreements is a very important break-through. I am shocked that this change occurred so quickly. It is now possible for couples to reap all the benefits of having the government regulate marriages while being able to limit the scope of that regulation if they so choose; couples can use prenuptial agreements to protect themselves from over-regulation.

Arlene Dubin, (an attorney) has written an excellent book entitled Prenups for Lovers (Random House, 2001). Ms. Dubin does an excellent job of explaining why prenups are so valuable, and provides a wealth of information about how to write a comprehensive prenuptial agreement that will stand up under fire.

I think Ms. Dubin’s book should be required reading for every engaged couple!!! I, like Ms Dubin, think that every couple should take advantage of this new freedom to customize their marriage contract. I don’t want to go into much depth about the specifics of prenuptial agreements. But I do want to include a brief summary of the information presented in Ms. Dubin’s book. Here is a great quote about the most commonly held myth about prenuptial agreements:

“Myth #1: A prenup jinxes a marriage. This is tantamount to saying that if you write a will, you will die sooner; if you take out fire insurance on your home your house is more likely to burn down; or if you buy long-term care insurance you are more likely to end up in a nursing home.”

Arlene G. Dublin (2001) Prenups for Lovers--A Romantic Guide to Prenuptial Agreements. New York, NY: Villard Books, a Division of Random House, p 23.

Of course, every couple hopes their marriage will be lifelong. Writing a prenup does not diminish this hope or the likelihood of attaining it. A prenuptial agreement simply helps a couple prepare ahead of time for how they will deal with the many complexities of divorce, if despite the best of efforts, they reach a point where they have irreconcilable differences. A prenuptial agreement is a way of acknowledging that people grow and change over time in unpredictable ways and sometimes find they can no longer remain happily married to one another. A prenup prompts people to make agreements when they are deeply in love and full of trust and commitment-- what better time is there to rationally and carefully decide on fair ways to deal with financial issues? A prenup prompts both people to be clear about their needs, desires, and expectations in regards to finances. Putting it all in writing is protection against misconceptions and misunderstandings.

The following is a list of what Ms. Dubin recommends be included in a prenuptial agreement:

1. List your assets, liabilities, income and expectations of gifts and inheritances.


2. Provide how premarital and post-marital debts will be paid.


3. Agree what happens to your premarital property and post-marriage appreciation, gains, income, rentals, dividends, and proceeds of such property in the event of death or divorce.


4. Agree upon what happens to your post-marital property in the event of death or divorce.


5. Determine ownership of your marital residence and secondary homes in the event of divorce.


6. Decide upon the status of gifts, inheritances, and other trusts either spouse receives or benefits from, whether before or after marriage.


7. Select the beneficiary of all 401 (k) 403 (b), profit sharing, pension, IRA, and all other retirements plans upon death and state if such benefits will be divided in the event of divorce.


8. Clarify what will happen to each type of property whether jointly or individually owned such as real estate, artwork, antiques, jewelry, earning from employment or self employment, stock options, stocks, bonds, mutual funds, businesses, professional practices, professional licenses or degrees, celebrity, goodwill, contracts, patents and copyrights, accident settlements, and winnings.


9. Figure out alimony, maintenance or spousal support, or provide for a waiver or property settlement instead of support (to the extent allowable by your state law).


10. Detail death benefits, stating what you will provide for in your will and the effect on state-mandated rights such as “elective share” and “intestate” amounts.


11. Determine whether you wish your spouse to be an executor of your estate or trustee of any trust.


12. Decide upon medical, disability, life, or long-term care insurance coverage.


13. Determine which state’s law will apply and how your agreement will be affected by a move to another state.


14. Identify your attorneys. [Ms Dubin stresses that each person needs to hire separate legal counsel to ensure that the prenuptial agreement will be upheld]


15. Provide for child support or custody (although non-binding).

Arlene G. Dublin (2001) Prenups for Lovers--A Romantic Guide to Prenuptial Agreements. New York, NY: Villard Books, a division of Random House, pp 74--75.

I cannot stress enough how important it is that couples write prenuptial agreements. When they don’t, they are opening themselves up to the possibility of an extremely unfair divorce settlement. If there is no prenuptial agreement, in the event of divorce, the “default State marriage contract” is enforced. The state marriage “contract” can be deemed by a divorce court to supersede and make null and void any verbal or written contracts the couple may have made with one another regarding their financial assets during their marriage. Without a prenuptial agreement, you are inviting the possibility of unwanted government regulation.

I’m sure most people have personally witnessed at least one nasty, unfair divorce. The sad fact is the seemingly nicest people have the capacity to become unbelievably mean, dishonest and unfair when they divorce. Divorce is often extremely shattering to the ego, emotionally devastating, and frightening. Human beings do not operate at their best under these circumstances. They become incapable of making rational, healthy decisions. There are far too many divorces in which each partner is out to get as much as he/she can from his/her spouse and all sense of justice is abandoned. It is quite common in the United States for each spouse to hire an attorney and instruct him/her to fight as dirty as legally allowable!!!! Oftentimes people successfully renege on all the agreements they have made to their partner through the years. Because, unlike the provisions of a prenuptial agreement, agreements between married partners regarding finances made after the marriage are not enforceable. They can be overridden in lieu of standard state statutes. Prenuptial agreements can, in some cases, be overridden too. But my research leads me to believe that a properly written and executed prenuptial agreement has about ten times more chance of being upheld than agreements made after marriage.

So, as soon as you become engaged, buy Arlene Dubin’s book and begin drafting your prenuptial agreement. As Ms. Dubin points out in her book, the process of writing a prenuptial is an excellent preparation for marriage. It may also alert a couple to the fact that their decision to marry is a mistake and allow them to bail out and avoid a whole lot of embarrassment and heartache.

The other option for couples is, of course, to not get legally married and draw up whatever contracts they desire as non-married co-habitants. This is a viable option. However, some people have serious psychological attachments to the idea of being married. In the next section I will discuss how to determine whether legal marriage is the best option for your particular situation.