Before the bells: prenuptial agreements

AWashington, D.C., career woman says she believes in prenuptial contracts, but not the kind she signed. It disadvantaged her position considerably when the marriage dissolved. In looking back, she comments, ``It is terribly important to be sure the agreement you sign is fair to both partners. This is awkward at a time when you are negotiating marriage with a person you profess to love and who professes to love you, but one who has considerably more worldly goods than you do.''

Like many prospective wives, she admits that she was naive about financial matters. She had no background in writing contracts and didn't know how to seek proper legal advice.

``I signed away all my rights, in the case of both death and divorce, in the hope that my husband's children by a previous marriage would neither feel nor be deprived,'' she says.

``The contract was basically unfair to me. My hope, encouraged by my husband-to-be, was that the inequities would be corrected later on. This did not happen.

``Although I had given up my job, given up some pension rights, and purchased from my own means new furnishings and landscaping for my husband's home, I came out of the marriage with nothing, no income, no funds to set myself up in a new home,'' she continues.

``When I sued, I was able to prove that I had carried great expenses within the marriage. The prenuptial contract I had signed against my best judgment was a hindrance, not a help. Justice prevailed insofar as I was awarded a sum from my husband in the amount that I, myself, had invested in the marriage.''

Other women have fared better with prenuptial contracts and have found them to be useful legal devices for putting financial matters in order before, and even after, marriage.

A wealthy older widow and an equally wealthy widower feel quite comfortable about signing a prenuptial contract specifying that her assets go to her children and grandchildren, and that his go to his children and grandchildren. A young couple in upstate New York felt good about signing a prenuptial contract that would return the wife's interest in her family's farm to her family in the event of her death.

Mary Coughlan, a specialist in legal matters in the department of consumer economics and housing at Cornell University, says that ``a prenuptial agreement can set the ground rules early, sometimes avoiding problems in a marriage. And if a divorce does occur, such contracts can save an enormous amount of time, money, and hassle.''

The reasons couples may want a contract vary, says Ms. Coughlan. ``With more people marrying later, many bring substantial savings or property into a marriage. Still others are fearful of losing much of their property, or their business, should a divorce occur. Some full-time homemakers want to protect their own investment of time and emotional support in a marriage. Husbands or wives who help a spouse through school may want an agreement that gives a proportion of potential income should they go separate ways.''

People who are marrying for the second or third time, she says, may want an agreement enabling each to maintain individual property and also protect the inheritances of children from previous marriages, a move that helps minimize tension between grown stepchildren and new stepparents.

While most states acknowledge that spouses may separately own property acquired during marriage, some states consider that all property acquired during a marriage is community property to be divided equally in a divorce. In such states, if a couple wants to maintain some property separately, a prenuptial agreement can help protect them.

Ms. Coughlan, herself a lawyer, recommends that any couple planning to marry should seek some legal and financial counseling, since marriage is a legal institution in which money plays an important role.

Remember, says the expert, that a contract can be changed at any time, as long as both parties agree to the modification. Also, laws regarding debts, assets, and wills vary from state to state, so people should make sure they understand the laws in their own state.

There is nothing new about prenuptial contracts, says Ms. Coughlan, although they have been more in the public eye in the last 10 years. This, she explains, is mainly because women are now more independent, are working in much greater numbers, and are amassing more property of their own. And because divorce has become more prevalent, couples are giving more consideration to property transfers.

``As women earn more, acquire more, and become more aware and astute, they will be less likely to be burned by disadvantageous contracts. They will question the competence of the lawyer they hire and seek to protect their own self-interest. Self-interest may seem counter to the romantic tradition of marriage, yet it is so important.''

In searching out the right lawyer, she advises, inquire if he or she has had family law experience and has written marital contracts before. Some lawyers have not written one and, in fact, do not agree with them. Some will recommend other lawyers who are expert in the field.

Doris L. Sassower, a White Plains, N.Y., lawyer who specializes in matrimonial law, says, ``To me, prenuptial contracts are important and vitally necessary in clarifying understanding about financial matters. If these matters are not set down in a clear, concise, written document, troubles can develop later on. I recommend such contracts to people of all ages and circumstances who are going into marriage or into a living-together arrangement.

``Romance is wonderful, but when couples start confronting basic issues like how they are going to live and who is paying for what and what belongs to whom, and who will be the decisionmaker as to money that is earned and property that is acquired in the future, such questions must be grappled with realistically.

``In the past, women too often came out on the losing end. Now, they are smarter and more objective and more resourceful. Prenuptial contracts, at present, are not standard operating procedure by any means, but women are considering them more thoughtfully.''

She recommends that those considering such a contract seek out a lawyer who specializes in the field of family or marriage law.

One source for finding such a lawyer, she suggests, is a local chapter of the American Academy of Matrimonial Lawyers, which could give names of fellows of the academy. These names could also be checked out in Martindale-Hubbell's Law Directory, available in any law library.