Sensible people routinely have life insurance, disability insurance, car insurance and homeowners insurance,
but few think about getting marriage dissolution insurance or living together and breaking up insurance. Many individuals planning to buy a cooperative or condominium apartment with a significant other request that both names appear on the deed or proprietary lease, but this is not enough. A legal contract that spells out who owns what is also a must. While it may sound unromantic, a pre-marriage or pre-living together contract can actually strengthen the relationship. And if things don't work out, the contract can save both parties a lot of pain in the end.
Prenuptial agreements, also known as pre-marriage contracts or antenuptial agreements, are no longer only the province of the rich and famous. As social mores have changed, a growing number of couples are willing to acknowledge that their marital vows may reflect a passing phase rather than a lifelong commitment. The chances are also good that at least one partner brings into the marriage a legacy of prior entanglements.
It's also wise to safeguard your interests before asking a boyfriend or girlfriend to move in. If the two of you split, you could lose more than a loveryou could also lose your shirt! Courts don't recognize live-in arrangements unless a written, legal agreement has been made ahead of time. You can't shield your heart in the event of a break-up, but you can protect your pocketbook if your attorney gets it all down in writing.
Moreover, while few husbands, wives or lovers are downright rich, the chances are great that at least one will enter the relationship with some significant financial resources. Just as the wealthy septuagenarian of lore had the foresight to have his beautiful, young fiancee sign a few papers, so should you exercise a little foresight these days before getting married or buying property. Let's not forget that lovers make the best bargains. The time to agree to disagree is when there is love in your hearts and a smile on your lips.
Some Serious Bargaining
How should a couple approach an antenuptial or living together agreement? In the first place, each party should see a lawyer, preferably not one recommended by the other. Many attorneys, myself included, will not represent both parties to such an agreement. There is some serious bargaining to be done here, and one can no more bargain with oneself than one can play tennis alone. To realistically consider the terms of this agreement, each attorney should act only in the best interest of his client at every point of the negotiations.
Each party should get a full disclosure of the other's assets and net worth. Full disclosure is the key to a solid agreement. The document should cover everything from finances to furniture and include exactly how much money each person spent on beds, dressers, couches and so forth. If there's a split up, all the facts will be in black and white. That way each of the participants will get back what they purchased. If buying a cooperative apartment, both names should be on the proprietary lease. In the event of the death of a spouse, a cooperative apartment will pass to the surviving spouse by law.
Not a New Concept
Black's Law Dictionary defines an antenu ffb ptial agreement as a contract or agreement between a man and a woman before marriage, but in contemplation and generally in consideration of marriage, whereby the property rights and interests of either the prospective husband or wife, or both of them are determined or where property is secured to either or both of them, or to their children.
Such agreements are not recent innovations. They have existed throughout history in different forms, such as a betrothal agreement (an engagement agreement), which is a contract in contemplation of marriage. Another example is the dowry which is an agreement between the families of the bride and groom setting forth what the parties will bring to the marriage by way of money or property.
Although antenuptial agreements were not recognized by statute in New York until 1963, they have been recognized by case law and precedent since 1877. There are no statistics on how many such agreements are negotiated each year. However, I do more and more such contracts each year and so do my colleagues at the Bar. Lawyers agree that it is increasingly common for business partners to insist on prenuptial agreements to protect corporate entities from the prying eyes of divorce attorneys, and for potential cooperative and condominium apartment purchasers to want the additional protection of such agreements.
One reason why antenuptial agreements may seem like a recent innovation is that they have changed in character. Until recently these agreements were used largely by wealthy old men to protect their estates from potential gold-diggers. Now that more women enter marriage with some property, money, or other interest of their own to protect, antenuptial agreements have become contracts carefully negotiated by attorneys for two individuals with equal bargaining power.
Because New York has a specific statute that eliminates common law marriage, pre-living together agreements must be express, not implied. But, express pre-living together agreements will be enforced much like antenuptial agreements. Like any other contract, antenuptial agreements will be enforced by the courts unless they are entered into by use of fraud, duress or over-reaching, or they are improperly executed (such as those that are not signed or not dated). The same holds true if the antenuptial agreement contains provisions against public policy or law. For example, the parties cannot provide for conditions that would be against the best interest of the children, nor can the parties agree to illegal activity (such as prostitution).
The new economic order of marriage, living together and buying property calls for a new degree of awareness. Whether you're headed for the alter, or just thinking about moving in together, enter the union with your eyes open. There's nothing wrong with two people in love talking about money or drawing up an antenuptial or pre-living together agreement. It is best to think of such issues with good will, rather than tinged with the bitterness of a break-up.
Ms. Weich, an attorney and women's activist, is a pioneer in prenuptial agreements and affirmative action. She was appointed by President Bush to the Federal Civil Rights Commission and re-appointed by President Clinton.