Legal View: Not your parents' prenup - How the contract for betrothed couples has changed over time

By Chloe Murdock
BridgeTower Media Newswires

Clients are bringing fewer assets and more hopes of avoiding a messy divorce to their prenuptial negotiations.

Cary Mogerman is president of the American Association of Matrimonial Lawyers (AAML) and a principal at Carmody MacDonald with a family law practice.

“I think that more and more younger people are doing it ... and I guess I would consider them regular folks,” Mogerman said. “They’re not particularly wealthy — not particularly complex financial lives — but at all stages of life, they are interested in what I would call the ‘perception of finality.’”

Mogerman refers to clients hoping to prevent divorce altogether, via a thorough review of how they would handle a marriage’s end, or at least ease the practicalities of handling assets after a divorce or death.

In the past, wealthy couples sought prenuptial agreements despite then-unreliable court enforcement. Today, the contract has since rebranded as an almost romantic intention for couples regardless of age or assets to simplify the reality of divorce and the vows “‘til death do you part.”

Enforceability then and now

Other documents in various cultures and time periods throughout history reported dowry goods and other assets to be exchanged in marriage. One of the earliest documents most like a prenuptial agreement, though not tried in a secular court, is a ketubah contract from 400 B.C.E.

For Jewish people then and now, ketubah contracts outline a woman’s rights upon entering a marriage and upon her husband’s death, as well as conditions that would constitute divorce in a rabbinic court.

Centuries later in 1848, New York was the first U.S. state to codify into law that married women would inherit their husband’s estate.

Missouri was a few decades slower to adopt similar laws that would govern prenuptial agreements, and the Revised Missouri Statutes notes the initial 1958 case of Chapman v. Corbin from the then-named Kansas City Court of Appeals. The court upheld a postnuptial property settlement agreement, with the same purpose as a premarital agreement to determine division of inherited property before a marriage’s end. It had been signed shortly after one of the parties filed for divorce but not before the divorce’s completion.

In 1983, the Uniform Premarital Agreement Act (UPAA) was first enacted to increase enforceability of prenuptial agreements across state lines.

Today, more than half of the 50 states have adopted the language into statutes at the state level. Missouri is not one of them. Mogerman said that there hasn’t been a concentrated push for adopting the UPAA into Missouri’s legislature.

“We have a pretty good body of law, we just don’t have that statute that other states have,” Mogerman said.

Ann Estin, a family law and international family law professor at the University of Iowa’s law school, said that enforcing a premarital agreement across national borders also has grown more complicated over time.

“We often think about the world today as being much more globalized, much more movement between countries than was the case a generation ago,” Estin said.

Estin noted that more opportunities exist for mixed-nationality couples to meet and form relationships across different nations, as well as new tests for premarital agreements if a couple moves to a new country. And couples with the same nationality who relocate to a new country may be required to divorce in a new country.

Post-World War II divorces

Data on increasing crude divorce rates over time is the first possible domino in the rise of interest in prenuptial agreements in more recent decades. This is according to statistics on crude divorce rates aggregated by Our World in Data as well as the Organization for Economic Cooperation and Development’s (OECD) family database.

Economists Betsey Stevenson and Justin Wolfers, who are cited by the two databases, estimate that changing marriage expectations as women entered the workforce during and after World War II also impacted marriage expectations that could have led to increases in divorce.

The United States pioneered skyrocketing divorces worldwide between the 1970s and 1990. The United States also had a higher and earlier peak in its divorce rate than any other country during that time period in 1979.
Millennials, those born between 1981 and the late 1990s, first drove an identifiable increase in prenuptial contracts. In a 2016 survey by the American Association of Matrimonial Lawyers (AAML), 62 percent of attorneys reported an increase in clients seeking prenups in the prior three years.

The survey also noted that millennial couples have married later in life than previous generations.

“Many people who marry now marry with resources of their own, they’ve saved,” Mogerman said. “Back then, it wasn’t very common [to seek a prenuptial contract]. People married when they were younger.”

Steve Bardol of the Bardol Law Firm in St. Louis also noted that his office receives referrals for same-sex couples seeking prenuptial contracts at least once a month since the 2015 U.S. Supreme Court case granting them the right to marry. Bardol noted that same-sex couples come to his office with stable financial incomes and considerable assets.

“I think that a lot of same-sex couples are people that do not have children, or have children later in life,” Bardol said. “And usually they’re maybe a little farther along in their careers, they’re more stable financially, so they’re more interested in getting prenuptial agreements done.”

Planning for the worst

Mogerman said that children of divorce, or anyone wary of the possible unpleasantries of divorce, are common clients seeking a premarital contract regardless of their assets.

“I also think that a lot of the people who get married today are children of divorce and they had very unpleasant experiences and unhappiness,” Mogerman said. “They think and hope that by getting a prenuptial agreement, they can avoid a lot of unhappiness should it be visited upon them in their lives.”

Bardol also noted an increase in unique clauses stipulating exact minutiae of how a couple plans their possible divorce proceedings.

For example, his clients are determining before their wedding how a divorce is finalized: Which party will stay in the house and how fees would be paid from certain bank accounts, as well as agreeing on maintenance and alimony during divorce proceedings. Infidelity clauses on how divorce proceedings change in the event one party cheats is another somewhat unique section for some couples.

Bardol says that most prenuptial contracts his office draws up for clients don’t get their ultimate test in court. And it’s impossible to know for sure if a “creative” agreement will hold up before a judge until it’s in front of one.
“The more out of the box it is, the less likely a judge will accept it,” Bardol said.


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