The Winter issue of the American Bar Association Family Law Section publication,
"Family Advocate" focuses on prenuptial agreements. The article,
"What Does Love Have to Do with It?" traces the history of prenuptial
agreements and suggests that instead of sucking all the romance out of
a wedding, prenuptial agreements should calm the couple's fears about
marriage and divorce.
Until a 1986 Florida Supreme Court decision, American courts would not
enforce prenuptial agreements, stating that they were contrary to public
policy and "deleterious to the constancy of marriage." Finally,
the case of
Posner v. Posner changed everything when a dissenting appellate judge upheld the prenuptial
agreement in question as, "not in contemplation of divorce, but in
contemplation of marriage." The Florida Supreme Court affirmed the
decision and since then courts across the country have followed suit.
According to a survey initiated by Lawyers.com, 28% of people believe
that prenuptial agreements are a good financial decision, but another
25% believe that such agreements only make real sense for the very wealth
and/or famous. Meanwhile, 19% of those polled believe that a prenuptial
agreement is not needed if the couple is truly in love, and 15% think
that having a prenuptial agreement casts doubt on the marriage from the
get-go, setting the stage for a failed marriage.
Interestingly, a poll of those who have already been divorced showed that
49% believe prenuptial agreements make good financial sense. Despite the
seemingly widespread belief that prenuptial agreements are a smart financial
decision, only about one in ten unmarried respondents said they would
never get married or remarried without one. Even fewer, only about 1%,
of Americans have a prenuptial agreement with their spouse/fiance.
In addition to the understandable fear that suggesting a premarital agreement
reflects doubt or uncertainty about the success of one's impending
marriage, a study conducted by Harvard Law School titled, "Why Are
There So Few Prenuptial Agreements?,"
asserts that another big reason so few people opt for prenuptial agreements
is that they simply do not understand, or are not aware of, their state's
laws on divorce and therefore, do not really see the potential benefits
of such an agreement.
Practicing family law in California, a community property state, we at
Makupson & Howard are often faced with shocked, disappointed or confused clients when explaining
how the Family Code and community property laws apply to each client's
individual set of circumstances. "So you're telling me she gets
half of that?" "But it was
my house before I met him!" "Why should I be responsible for half
of that, it was
her credit card." These are just a few of the phrases we hear from clients
on a regular basis, reflecting the general lack of awareness of California's
laws relating to divorce and community property.
prenuptial agreement is the right choice for any given couple is something only the parties
involved can answer. However, we do suggest that at the very least, a
couple contemplating marriage take the time to learn about their state's
laws on marital property and divorce, or
consult with a family law attorney to help them better understand how their individual assets, debts and
future earnings will affect their long-term financial planning both within
their marriage, and outside the marriage. Once you have an understanding
of the relevant laws, you will be better able to decide if a prenuptial
agreement is the right decision for you and your future spouse.