What Price Love?

By Jill Smolowe

When Keith, 31, first raised the issue of a prenuptial agreement with his fiancee Sarah, 32, she balked. For a month the Manhattan stockbroker danced around the subject, then he pressed hard. "I said if we don't sign a prenuptial, we can't get married," he recalls. Finally Sarah, an advertising executive, consented, and each hired a lawyer. Keith's attorney drafted the first version, largely to protect money the groom expects to inherit from his family, and Sarah "flipped out," says Keith. "She was almost in tears." It took months before the couple hammered out an agreement that allowed them to keep their appointment at the altar.

Before they say "I do," more and more American couples are following the same pattern: negotiating premarital contracts that spell out what they will and won't do, or share, or pay. Publicized and popularized by the rich and famous -- most loudly of late by the feuding Donald and Ivana Trump -- prenuptial agreements are increasingly in vogue among the middle and upwardly mobile classes. Such contracts are recognized in all 50 states, and matrimonial lawyers report that they are preparing two to five times as many as they did just five years ago, particularly among couples who make $50,000 and up. Many of the agreements not only spell out a division of financial assets if a marriage fails or a spouse dies, but also enumerate "life-style clauses," sometimes bizarre in their obsessive fine-tuning, that provide a blueprint for a marriage before it has begun.

Many people say prenuptial agreements are unromantic. Others argue they are a handy vehicle for improving communication. The chief reasons for their growing popularity, however, are sociological. Men and women over age 30 account for 41% and 32%, respectively, of all new marriages. People coming later to marriage usually have more substantial assets in tow. Moreover, in 45% of all new marriages, one or both partners have been married before. Thus many people have property they want to protect for their children by prior marriages. Says Gail Koff, a founding partner of the law firm Jacoby & Meyers: "These couples understand that marriage is a business proposition."

But business alone does not a marriage agreement make. The lingering sour taste of a failed previous marriage prompts many couples to try to anticipate all the obstacles ahead on the next try. Couples in interfaith marriages often predetermine the religious upbringing of their prospective children. Two- income couples spell out the conditions under which they will relocate for a spouse's career. For every sublime consideration, there is a matching ridiculousness. One New York City couple were so determined to divide expenses equally that their contract stipulated that they would split the $3 toll when crossing the George Washington Bridge. Another couple itemized the ownership of 207 items, down to a $1.98 vase given to the prospective bride by her grandmother.

No matter seems too small -- Who takes out the garbage? Who does the dishes? -- or too weird. Matrimonial lawyer Steven Zerin steers clients away from such idiosyncratic life-style clauses, arguing, "A marriage is off to a poor start < if you're unable to determine personal issues without a written contract." Los Angeles divorce lawyer Marvin Mitchelson, who has received requests from clients for clauses sanctioning infidelity, refuses to draw them up, noting that such understandings will not stand up in court.

By contrast, the financial terms of prenuptial agreements generally hold up well in legal battles. But that does not stop angry ex-spouses from trying to challenge them. "The agreement may limit the issues, but it won't prevent litigation," warns Alvin Ashley, a Manhattan lawyer whose firm is handling six cases involving contested agreements. Thus while an agreement -- which can range in price from $500 to $50,000 -- may seem a relative bargain at the time of signing, the subsequent challenge may prove every bit as expensive as any other messy divorce.

On the other hand, some matrimonial lawyers endorse the deals as a declaration of honorable intent. "They're really legal valentines," says lawyer Jacalyn Barnett of Shea & Gould in Manhattan. "They get you to talk about the things that make a marriage work." Boosters cite communication, money, sex and in-laws as the most common issues behind divorce; prenuptial agreements compel couples to confront the first two of those openly. True, the very process may unhinge a couple's wedding plans. But Barnett, who has seen three couples break up during contract negotiations, argues, "I don't think I prevented a marriage. I think I prevented a divorce."

If a couple decides to proceed with an agreement, lawyers advise that each partner should be represented by separate counsel and that several months' time should be allowed for negotiation. Most lawyers require full financial- disclosure statements on both sides. As further protection, some attorneys recommend that the signing of the agreement be videotaped; others suggest that a court reporter attend the signing to take down all questions and answers.

Is there still hope for love amid the legalese? Certainly. Cynthia and Chester Janssens of Grosse Pointe, Mich., both previously married and with two children apiece, signed a typical agreement that kept their prenuptial assets separate and provided that everything else would be split evenly at divorce. Eight years later, the couple are still married, and they are planning to nullify part -- or all -- of their agreement.

With reporting by Barbara Dolan/Chicago and Andrea Sachs/New York