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| Attorney k Counselor At Law Fountain Plaza Office Building 23461 South Pointe Drive, Suite 350 Laguna Hills, CA 92653-1546 Telephone: (949) 206-9900 Call Toll-Free 1-877-77-DIVORCE (1-877-773-4867)
Lorna J. Wendt, the stay-at-home corporate wife who caused a sensation in 1998 by demanding a 50-50 divorce settlement from her super-wealthy husband, is now urging every couple to negotiate a legally binding prenuptial or postnuptial contract to clearly establish the ground rules of their marriage. "The biggest social contract you go into is your marriage and yet we tend to go into it very lightly," Wendt said. "You wouldn't put a new roof on your house without a contract with the roofing company."
But chances are you're not going to be sleeping with your roofer. Prenuptial contracts, usually associated with movie stars and multimillionaires, turn a lot of people off. It's like treating the love of your life as a business partner.
William M. Levine, president-elect of the Massachusetts chapter of the American Academy of Matrimonial Lawyers, said the prenuptial negotiation process can be emotionally grueling for a lot of couples. "It rehearses their divorce, which can put a lot of strain on a relationship," he said.
But a growing number of marriage counselors say it's better for a couple to put everything on the table before a marriage, when the vibes are good and there are tremendous incentives to compromise. If problems develop, the thinking goes, it's better to deal with them before saying "I do," rather than after.
Luke Knutson, a researcher at Life Innovations, a Roseville, Minn., company that uses surveys to facilitate premarital counseling sessions, said couples considering marriage are most at odds on financial issues, agreeing only 46 percent of the time on average.
Life Innovations takes no position on whether prenuptial contracts are a good idea, but Wendt said taking a premarital conversation to the contract level is insurance against marital failure. With an estimated four of every 10 marriages ending in divorce, Wendt said it makes sense for couples to craft the terms of a divorce themselves, rather than to leave the details to a judge.
"Why let a man or woman who knows nothing about you as a couple or you as an individual decide the fate of the rest of your life?" she asked.
Wendt's Equality in Marriage Institute in New York City is promoting prenups aggressively. The institute urges couples to first have a frank conversation about goals, lifestyles, children, health, and finances and build toward a commitment contract. The aim is full disclosure going into a marriage as well as financial protection for both parties should that marriage fail.
When Wendt's 32-year marriage ended, she said her husband offered her $8 million plus alimony, but she wanted half of the $100 million she thought her husband was worth. If she had known upfront her marriage contribution was only going to be valued at less than 10 percent, Wendt says she probably wouldn't have gotten married.
A judge eventually awarded Wendt $20 million, a ruling she appealed as inadequate. She said the case was settled privately a year ago. She said she was very happy with the outcome.
The courts in recent years have given prenups more and more legitimacy, even in cases where the agreement is lopsided in favor of the person with greater economic power. For example, the Massachusetts Supreme Judicial Court ruled last year in the so-called DeMatteo case that prenuptial agreements could not be voided unless they are "unconscionable." Previously, the court had held that prenuptial agreements needed to be "fair and reasonable."
The prenuptial agreement between M. Joseph DeMatteo and his wife, Susan, called for Susan to receive $35,000 a year before cost-of-living increases plus a car, a house, and child support. Susan signed, but when the couple parted she argued the agreement was unfair because it gave her less than 1 percent of her husband's estimated $112 million net worth.
A lower court sided with the wife, saying the agreement had not been fair. But, in a unanimous decision, the SJC said the prenup contract was valid. "She was free to refuse marriage on those terms," wrote Chief Justice Margaret Marshall.
Levine, a partner at Lee, Levine & Bowser LLP in Boston, said prenuptial contracts have their place, particularly when significant assets, second marriages, inherited wealth, or family businesses are involved. But he said the [cost] and the emotional toll are not for everybody.
Nonsense, says Arlene G. Dubin, a partner at the law firm Sonnenschein Nath & Rosenthal in New York and author of "Prenups for Lovers" (Villard Books).
Dubin said nearly everyone needs a prenup today because they either have assets, debts, an inheritance, or economic prospects that have to be dealt with. She said prenups don't necessarily benefit the person with the greatest economic power ("It's often the emotional power that's greater than the economic power," she said), and their cost depends on how well the couple can resolve differences without the involvement of lawyers.
By 2020, she predicts, more than half the couples walking down the aisle will have prenups. Marriage is both an emotional and economic partnership, she said, and the terms of that partnership need to be worked out in advance with a prenup, which she calls a "marriage enabler."
"It should be standard issue for impending nuptials," she wrote in her book, "along with the license and the ring, and part of the romance of courtship, like moonlight and roses."
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