Altar-bound should weigh need for prenuptial agreement

PERSONAL FINANCE

February 19, 2006|By EILEEN AMBROSE

Put yourself in Anna Nicole Smith's stilettos.

At 26, you marry a Texas oil tycoon more than 60 years your senior. He dies a short time later. A decade goes by, and you're still wrangling with your stepson over the multimillion-dollar estate, all the way to the Supreme Court this month.

And you realize all this could have been avoided if you and your octogenarian fiance had only drawn up a prenuptial agreement.

OK, maybe it's a stretch to imagine yourself in the former Playboy playmate's situation. But with the height of the wedding season just a few months away, it's a good time for engaged couples to consider whether a prenuptial contract is for them.

Lawyers and financial advisers say a prenup can spur financial discussions among couples and help them avoid disputes when married.

Or, at least, it can make things go more smoothly in a divorce. But a prenup is difficult for a partner to bring up, and serious friction can ignite if both sides aren't on board.

Nevertheless, lawyers and financial planners say couples increasingly are entering into such pacts.

"More people are getting married older and wealthier. And they have more to protect today than ever before," says John Mayoue, an Atlanta divorce lawyer who represented Jane Fonda and Marianne Gingrich.

Business owners, for instance, want to make sure their enterprise remains viable even if their marriage doesn't. Those on their second or so marriage often want to preserve assets for children from a previous union. And even first-timers will get a prenup if one partner has far more assets - or far more debt - than the other, lawyers say.

Basically, a prenup is a legal agreement signed before the marriage that details how assets will be divided in the event of a divorce or if one partner dies.

Eric Brotman, a financial planner in Timonium, is in the process of drawing up a prenup with his fiancee. It's his second marriage, her first. Brotman says the prenup will exclude his business from the marital pot. That way his business won't be at risk of being liquidated if the marriage collapses.

"My clients and employees and all their families could suffer by my having marital problems," the 34-year-old says. "I can't let that happen."

State law governs marriage, so the rules on prenups vary across the country. But lawyers say there are certain characteristics prenups generally must have to avoid being successfully challenged if a divorce occurs.

Both sides must fully disclose assets and liabilities.

"You want to know what you are getting into and what you are missing out on," says John Readey, a lawyer in Kansas City, Mo.

Each must be represented by independent legal counsel.

The agreement must be fair and reasonable. "It can't be over-reaching," says Richard Jacobs, a family lawyer in Towson.

A millionaire, for instance, can't insist that a longtime spouse be penniless after a divorce.

And one partner can't coerce the other to sign a prenup.

Jacobs says he successfully challenged a prenup on grounds it was signed under duress. The lawyer groom had whipped out the contract for the bride to sign on the way into the ceremony, he says.

Timing is often an issue to avoid claims of duress. Partners need time to negotiate and understand what they're signing. Mayoue advises broaching the subject six months before the wedding and finishing the prenup a month prior to the trip to the altar.

Certain provisions don't belong in a prenup. They include spelling out who will clean the house, how often the couple will have sex or requiring that a mate can't gain weight.

"They are not enforceable and they are silly," says Susan Elgin, a Towson matrimonial lawyer.

Challenges to a contract are always a possibility. Even if Smith had a prenup, it likely would have been challenged just because so much money is involved. But challenges today are less successful than in the past, lawyers say.

"Ten years ago they were relatively easy to challenge and the judge had very, very wide discretion whether to enforce them," Mayoue says. "Today, the national trend is, `Baby, if you sign it, we will hold you to it.' "

Mention prenup and the word "romance" is unlikely to pop up in most people's minds. But New York lawyer Arlene G. Dubin maintains that the pact is romantic.

"Marriage should definitely be romantic. And marriage should be a spiritual and emotional union. But it's something beyond that. It's also under our law an economic partnership," says Dubin, author of Prenups for Lovers: A Romantic Guide to Prenuptial Agreements.

A prenup can lead to honest discussions about finances or other anxieties that otherwise might slowly destroy a marriage, she says. "It's more romantic ... to create your own rules and not live by the rules of the state that may or may not be applicable to your situation," Dubin says.

And besides, she adds, what better time to negotiate than when both partners are starry-eyed in love. "They are more apt to be generous and caring about the other person," she says.

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