When two people enter into a business deal, they usually negotiate and put their agreement in writing so there will be no misunderstandings. Not so, says divorce attorney, Larry Frolick, in the case of a marriage. Frolick describes the unspoken terms and conditions that Mary and Joe think they have in their marriage contract. Perhaps not surprisingly, their terms and conditions are different.

Mary: I’ll love you (and sleep with you and nobody else, listen to your problems and try to help [as long as they are not too overwhelming and especially if they don’t remind me of my alcoholic father’s problems] and keep you company on most weekends [unless the business I intend to start in 36 months takes off and gets me out of town, and unless my sisters call for a family emergency that will take precedence over any situation here, except your heart attack or other life threatening disease]), and I’ll continue to work at my (boring) job to pay for our (first) house (but only for two years after which I expect [based on what you bragged about when we were drinking orange juice and champagne with the Fergusons], that you will start earning $100,000 by then), when we will move to a house (at least as good as my parents’ and in a comparable neighborhood) and have a baby (who had better not remind me, as she grows up, of your mother, whom you’d better stop defending pretty quickly) who will be like me (but who will not be forced into things by her family, like having to escape because they are so demanding and unreasonable) etc., etc.

Joe: I chose to marry you, Mary, because you’re calmer and more deliberate than my mother, so don’t you dare ever do anything that reminds me of her, and especially when I go fishing every spring like my dad, and don’t freak out like she did, about leaving her alone on weekends É etc., etc.

Side Deals.  Then there are the unspoken side deals with third parties: “This marriage doesn’t mean, Mom, that I won’t come home every Thanksgiving for the rest of my life, and sleep in my room and overlook Dad’s fooling around with Mrs. Carter in our little family game we know so well, and I’ll continue to be your little girl/boy, etc.”

Prenuptial agreements, and postnuptial agreements, are used to determine financial aspects of a marriage or divorce.  But you can also add lifestyle clauses to deal with non-financial matters as well.  The Weinberger Law Group suggests a social media clause.

A social media prenup clause would provide that neither party would put any negative, disparaging, embarrassing, insulting or unflattering content on Facebook, Twitter or other social media.  You might agree not to post photos of the children or anything about family finances.  Some couples agree they will not post anything about each other on social media in the event of divorce.

Something to think about in the wired world we live in.

Elizabeth Petrakis claimed that her husband, Peter Petrakis, who controls $20 million in real estate, fraudulently induced her to sign a prenuptial agreement four days before the wedding.

Elizabeth said that Peter threatened to call off the wedding if she didn’t sign. Her dad had already paid $40,000 for a reception and she said she felt coerced into signing against her will.

She also told the court that Peter had promised he would tear up the prenup once they had children. They had three. Peter denied that he made any such promise.

The Brooklyn Appellate Court apparently did not believe Peter and they threw out the prenup. The divorce will proceed without it.

The lesson to be learned from this case is sign your prenup long before the wedding if you want it to hold up in court.

Prenuptial agreements mostly deal with what happens in the event of death or divorce.  But they can also be used to set up how a couple will handle their finances during the marriage.

It is also possible to put non-financial provisions, so called lifestyle clauses, in a prenuptial agreement.  So a couple can agree on who does which household chores, or how much television watching is permitted or even how may times a week you will have sex.  You can set a weight limit.  You can agree to a penalty for cheating.

Some couples view these as valuable provisions, sort of like a mission statement for their marriage or an extension of their vows.  Others find them to be negative saying that a marriage with lifestyle clauses is doomed from the beginning.

How they would be enforced is another question.  Will the court order an overweight spouse to lose 10 pounds?

A postnuptial agreement is just like a prenuptial agreement only it is made after the wedding.  The parties may agree in writing after their marriage who gets what in the event of a divorce and the courts will enforce that agreement.

Section 8-101(a) of the Maryland Family Law Article says “A husband and wife may make a valid and enforceable deed or agreement that relates to alimony, support, property rights or personal rights.”

There are many reasons for a postnuptial agreement.  Spouses may have run out of time to negotiate or execute a prenuptial agreement before they got married.  They want to amend their prenup.  Or they may want to have financial certainty in the event of a possible divorce.

When you think about it, separation agreements and marital settlement agreements are actually postnuptial agreements although they are not titled that way.

Carolyn Hax wrote an interesting column in The Washington Post in response to a woman who was surprised when her fiancé presented her with a prenup a month and a half before the wedding.

There were many comments discussing the pros and cons of prenuptial agreements.  But to my mind, people were missing the point.

They set the problem up as though the choices were having a prenup and getting divorced or living happily ever after in marriage until death do us part.

The thing is the legislature has already made a prenuptial agreement for you which is the default if you do not make your own.  It is called the domestic relations law and it is contained in the law books which publish the code for your state and the appellate cases which interpret that law.  It is several  pages long and incredibly complicated.  You will be blissfully unaware of it until and unless you get divorced.  Then you will say, “The law says what?”

So I think the choices are actually these: In the unhappy event we do get divorced, (a) do we want to make our own agreement now or (b) do we want the law, the judge and the lawyers to make one for us later?  Hopefully, you will make a prenuptial agreement and throw it in a drawer somewhere and never have to pull it out.

          Pre-nuptial agreements, also called premarital agreements, were once thought of as something for the very rich. This has changed and now many couples across the income spectrum enter into prenuptial agreements, or at least explore whether a prenuptial agreement is right for them.

            Why have a prenuptial agreement?  Even if you and your fiancé do not have a prenuptial agreement, you will, upon marriage, have an agreement – your state’s marital contract.  Its terms have been set by the laws passed by legislature and the decisions made by the judges over the years. The marital contract in your state is what the legislature has decided is best overall for the vast number of marriages across your state.  This is supplemented by what your state’s judges decided was best in the particular cases that came before the judges over the years.

            It may be that your state’s marital contract is what is best for you and your fiancé and it might not be.  You and your fiancé can look at your particular circumstances and your state’s applicable law and decide whether the provisions of state law are appropriate in all respects for your marriage.  If you decide those provisions are not best for your marriage, you can make your own particular prenuptial agreement.  You will be talking about property, debts, death, and perhaps how to settle things in the unhappy event of a divorce.  Arriving at a premarital agreement is not, sadly, a romantic process.  But it can be an open discussion that begins your marital communications on a sound basis.

            What is the marital contract and what does a prenuptial agreement cover?  Briefly what we refer to as the marital contract is the law regarding the financial rights and obligations of spouses at death – intestate succession and election against the will, and at divorce – claims against marital property and for allocation of marital debt, and claims for support.  Therefore, the most important purpose of a prenuptial agreement is to specify what happens to property upon the death of the spouses and what happens in the event of a divorce.    See previous posts regarding rights of a surviving spouse and various provisions of divorce law in Maryland, Virginia and the District of Columbia.       

            In your prenuptial agreement you and your spouse can identify all your premarital property, select your own rules for what property will be marital and what will be separate, and the disposition of property at death and at divorce.  You can also agree on rules for determining what debts are marital and shared and what debts are separate and therefore the obligation of the spouse who incurred the debt.  And you can also waive alimony or specify what alimony will be.  And your prenuptial agreement can have other provisions particular to your marriage.

            When is a prenuptial agreement appropriate?  Only you and your fiancé can decide whether a prenuptial agreement is appropriate for you.  But there are various circumstances that indicate the likely need for a prenuptial agreement.  A few examples are one or both of you: 1) have children from a prior marriage or relationship; 2) own and operate a business; 3) own real property or have substantial premarital retirement accounts; 4) are leaving employment or relocating on account of the marriage; and 5) have obligations under a prior marital settlement agreement or divorce decree.