Need a smoke? Reaching for another fudge brownie? Want to get a dog? If you're one of a select number of Americans, these things and more may be on your list of no-nos, and it's not because you're concerned about your health or that of your new spouse. These days, more couples getting married are signing prenuptial agreements to keep their lover in line.
Most people think of prenuptial agreements as something for the rich and famous, according to Nancy Mello,
a CDFA and financial advisor with Merrill Lynch’s Global Private Client Group in Dallas, Texas. But prenups, a legally binding contract about how a couple's assets will be divided in the event of a divorce, are being used more often by Americans of every economic level -- particularly when it comes to remarriage.
"They seem to be more common nowadays, because of the high divorce rate," said Divorce360 expert Kelly Chang Rickert
, a family law attorney in California. "Second marriages also come with more children, assets...so it is important to define the rights and obligations before stepping into a legal arrangement, such as marriage."
According to statistics from the Department of Health and Human Services'
National Survey of Family Growth, 15 percent of remarriages end in three years, 25 percent are over in five years. Other studies put the remarriage failure rate at 60-to-70 percent, especially if stepchildren are involved. “People who are getting remarried and have significant assets want to protect them,” said Mello.
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"It is not unusual for parents to be the motivating force behind a pre-nuptial agreement," said New York divorce attorney Daniel Clement
. "Often, a parent requires the child to have a pre-nup to protect a prospective gift or inheritance."
What can go into the prenup? According to Chang Rickert, "a lot of things." In that state, some of those usual terms could include property rights and obligations, a will or trust and death benefits from a life insurance policy. But these days, some of the terms in prenuptial agreements are going beyond the financial.
Earlier in 2008, Newsday and the Chicago Tribune reported that some other conditions found in prenuptial agreements:
- The right to perform random drug tests, with money paid as a penalty if the results were positive.
- A spouse being limited to no more than one football game on Sunday during the season.
- A spouse being allowed to opt out of all vacations with in-laws.
- The use of frequent-flier miles as payback if a spouse was proven to be cheating.
- A payout of $100,000 for every time a spouse cheated.
- Limiting a wife's weight to 120 pounds, with a penalty of $100,000 if she gained a pound or two.
"Prenuptial agreements are used by parties to organize many aspects of their married lives. When push comes to shove, however, most of these lifestyle arrangements are probably unenforceable in a court," said Lee Rosen, founder of Rosen Law Firm in Raleigh, N.C.
"We had a couple enter a prenuptial agreement that provided that the parties would never own pets," Rosen said. "We had another agreement that provided that the wife would have the discretion to own as many pets as she wished without objection by the husband. We have had numerous agreements wherein the parties agreed as to household chores such as the husband agreeing to do the dishes and the wife agreeing to do the cooking."
Chang Rickert has seen prenuptial agreements in which one spouse requires sex a certain number of times each week or a spouse has agreed to waive child support as part of the marital arrangement. But despite what written in the documents, she said the state of California still won't accept some of the terms, including: limitations on child support, custody, religious preferences, damages for cheating. "Technically, you can put these provisions in the prenup. But they are unenforceable, so what is the point?," she said.
Rosen disagrees, however. "Should people bother with these agreements? Probably so if they have an issue that seems so important to them as to warrant a serious discussion. Even though they may not hold up in the courtroom, they usually hold up at home. Most people honor their agreements and voluntarily live up to their commitments."
According to Chang Rickert, the newest trend in prenuptial agreements is no community property, meaning couples are keeping all the financials separate, including property. Also, she said, no spousal support will be given in a divorce.
Laura Wasser, divorce attorney to celebrities such as pop star Britney Spears and actress Angelina Jolie, said California courts addressed prenuptial agreements between 2000-2001, spelling out more clearly what to do to make them enforceable in court. "If they're done properly, they will hold up," she said.