Tiger Woods recent marital problem highlights the need for premarital agreements sometimes called prenuptial agreements. There’s been speculation that Tiger Woods and his wife may have reached an agreement to stay married and avoid divorce — which in Texas is called a postnuptial agreement. The gritty details of actor Dennis Hopper’s and golf aces Tiger Woods’ and Greg Norman’s prenups have all been hot topics on the internet.
Suze Orman encourages every engaged couple to get one to protect their current and future assets as well as to sheild themselves in case a mate secretly runs up massive credit card debt. "People are hopeful," Orman says. "They want their relationship to last. … It’s just natural that they don’t think they’ll need a prenup. Never in a million years do they think (divorce) will happen." In 2008, the divorce rate was about 50%. Among married Americans, the median duration of their wedded life in 2008 was 18 years, according to Pew Research Center’s analysis of government data. Given those odds, "Hope is not a financial plan," says Orman, who urges that every couple get a prenup. "The time to plan for a divorce is not when you’re in a state of hate," she says.
Among the divorced, 15% say they regret not having a prenup in their most recent marriage, according to the Harris poll. Men are more likely than women to have this regret, at 19% vs. 12%. Nearly 40% of divorced Americans also say they would ask their significant other to sign a prenuptial agreement if they remarried.
Elizabeth Gilbert, the author of Eat Pray Love and Committed, advocates for couples to get prenups: "Marriage is not just a private love story but also a social and economical contract of the strictest order," she says. "If it weren’t, there wouldn’t be thousands of municipal, state and federal laws pertaining to our matrimonial union."
USA Today writer Laura Petrecca in the USA Today article Prenuptial agreements: Unromantic, but Important cites to a Harris Interactive study that nearly 2/3rds of singles say they would ask for a prenup. On the other hand, of those polled, only 3% actually had prenups.
That statistic may mean that prenups are on the rise. Or, it could mean that they chicken out of throwing cold water on the afterglow of the engagement. Let’s face it: The afterglow of that Valentine’s Day proposal often begins to dim as discussions of wedding details get started. The happy couples face potential buzz killers that are financial (how to keep reception costs down), logistical (where to seat relatives not on speaking terms) and, in recent years, even more controversial (So, honey, I love you, but how about that prenuptial agreement …).
The prenup seems so utterly unromantic — or just plain wrong — but it’s also become so right for so many these days: those keenly aware that a marriage may end up in a legal separation, divorce or death. Most prenups tackle financial issues such as real estate, division of bank accounts and potential spousal support in the case of divorce or separation.
Prenups can focus on the obvious disparity in earnings or wealth, credit card or student loan debts, future spousal support, or child support paid to children from another relationship. But prenups can also address emotional or behavioral issues. One example cited in the USA Today article references a husband who wanted to make sure his wife remained drug-free so he conditioned payment of spousal support upon a clean drug test each month. Other prenups have addressed issues such as adultery, intimacy, weight-gain, division of household duties. Those clauses may seem unnecessary to some folks, but nailing down what is important to each individual — be it the ownership of a ski house, retaining the rights to an antique tea set or determining who keeps the pets after the breakup — is vital to do before the marriage laws kick in.
The bottom line is that a prenup can address whatever issues are important to the spouses — from simple identification of assets and debts going into the marriage, to the more complex issues about how the marriage relationship will work. There is really no "form" prenup — it should contain the provisions that are important to the people signing it. A prenup gives the soon-to-be-spouses a way to re-write the law that governs a divorce to conform to their own expectations.
Keep in mind, however, that even if a prenup is executed, a party may still seek to challenge it. Under Texas law a person may challenge a prenup based on the circumstances surrounding its signing — was it signed under "duress"? Or, it may be challenged based on the contents being so unfair as to be termed "unconscionable". Parties to a prenup must make a full disclosure of income, assets, and debts.