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A word on nuptial agreements

A SECOND MARRIAGE is more likely to end in divorce than a first marriage; tolerances are low and there’s less hesitation before throwing in the towel. That’s why it’s important, almost imperative, to work up a prenuptial agreement before the words “I do” are stammered for the second time.

We all used to associate such contracts with high-powered society couples – she’ll get the apartment in Milan, he’ll get the house on Capri -but most lawyers, accountants and marriage counselors now agree: A prenuptial agreement or contract is definitely the way everyone should go, particularly and especially if children of any age are involved in the merger.

Appellate Judge Richard Neely wrote an article on marriage contracts in the legal periodical Juris Doctor almost five years ago: “Perhaps people need lawyers and judges before they get married and a priest after they get married, rather than the other way around.” It really seems that nothing could be more true-particularly in the instance of a second marriage.

Most people have surmounted the notion that prenuptial agreements are in any way tacky or bad luck for an otherwise good match. Still, many couples balk at sitting down with separate attorneys to set something up. It requires tact to create a suitable agreement for one party without making the intended spouse feel like a thief.

Family-practice lawyer Louise Raggio gets many of her clients over this psychological hump by reminding them that “it may not be the spouse at all who is going to cause a problem.” A prenuptial agreement, she says, frequently pertains to forces outside the marriage itself, things beyond the newlyweds’ control.

While the contract, Neely writes, “may be a repudiation of the romantic spirit, it need not be any more painful than the normal discussions engaged in by two people sincerely contemplating marriage.”

Marriage and family therapist and educator Virginia Clemente, a Dallasite now living in El Paso, wholeheartedly urges her clients to see the importance of having a contract drawn up. “If the children involved in this blended family might inherit or be supported by one party’s assets, in college or in an emergency, those children need to be protected,” she says. “Regardless of how big or little the ceremony is to be, a couple should make legal arrangements before the wedding.” Take, for example, the make-believe case of a 72-year-old man who dies in the arms of his 39-year-old bride within hours of the wedding ceremony, leaving no will. If no nuptial contract had previously been drawn, the state statutory code would set the only provisions. One-third of the man’s property would go to this new wife. The rest, perhaps an unintentionally small amount, would go to his children-imagine the hostility if he had four or five.

A prenuptial agreement can be loosely worded or very exacting in its presentation; it can be whatever the two parties want it to be. It can take on some of the properties of a will, but a good attorney will want to draw up both documents, have them witnessed and signed. Once there is a legal, valid plan for the marriage, on paper, two people can live blissfully and happily ever after, knowing that the loose ends are sewn-up. The choice of domicile, what is separate property and what is community, tax-filing status, duty of support and the method used to reinvest earnings can be established at the marriage’s outset. This circumvents later arguments about what’s “his” and what’s “hers.”

Virginia Clemente also encourages her clients to talk the contract through with the children. “Children pay the bigger price in a second marriage,” she says. “I’ve seen it too many times. The parent needs to reassure them and answer their questions. A child may be wondering: ’Am I going to go to college?’ or ’Are his kids going to go when I’m not?’ or even ’Will I get a bike?’ “

Another thing that needs to be discussed, then outlined in the contract, would be how a couple’s discretionary income might be spent, Clemente says. Will it be invested in a summer home, given to charity or otherwise reinvested in one of the two estates?

But lawyers remind their clients that there are certain things that can’t be contracted, like, as Neely writes, “grounds for divorce different from those provided by statute.” In other words, a wife can’t have a contract that says “I get to divorce you and take a percentage of your assets if you don’t take the garbage out in the afternoons.”

Lastly, a prenuptial contract is not the be-all and end-all; it can be altered as the years go by. Separate property can be changed to community property after one spouse has established a history with the other’s affairs. Contracts can be nullified if both parties find them no longer of any use. But when a contract exists, it lends a basic plot outline to a marital fantasy-it gives shape and structure to formless finances that could be misused, misplaced or lost completely if they’re not controlled.

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