Happy Holidays … I Love You … Please Sign Here (Info on Prenuptial Agreements)
By Rudman Winchell Attorney Anthony Trask
The holiday season is upon us and historically marriage proposals are at their peak this time of year. If you add the fact that same sex marriage licenses will officially be available in Maine on December 29, 2012, it is likely the number of couples getting engaged this month will reach an all time high. This turn of events seems to provide the perfect opportunity for a sometimes cynical divorce lawyer to spoil the festive and apparently romantic spirit of the season by offering a few words about divorce and the wisdom of prenuptial agreements.
As much as virtually all marriages start out with the sincere belief and intention that they will last forever, about half of all marriages end in divorce.[i] The high water mark for divorce appears to have been in the 1990s as the rates have come down slightly in the new millennium, however, this drop seems to have been caused by a growing preference of people to simply live together without tying the knot.[ii] Those relationships end, too, and sometimes require the assistance of the courts when there are legal entanglements such as children or jointly owned property, however, parental rights and partition actions do not add to the divorce data collected by the U.S. Census Bureau and other agencies.
Perhaps the most alarming trend regarding marriage here in Maine is that in 2009 (the most recent data available) we had nearly the same number of new marriages as divorces. For every one thousand men in Maine that year, 13.5 got married and 13 got divorced. The statistics for woman were slightly better with 12.2 women per thousand getting married and 9.1 getting divorced.[iii] These statistics are the worst in the Country; in most other states the number of those getting divorced was about half the number of those getting married. What this statistic means about Maine is unclear. It could simply be a statistical anomaly, but it might suggest that Maine people are less apt to get married now while the rate of divorce for those already married remains the same or is growing.
Whether the introduction of same sex marriage in Maine is going to change these statistics is unknown. While we could speculate that it might give the institution of marriage a bump for some time, once the newness and excitement of gay marriage erodes into the commonness of marriage between opposite sex couples it is likely the rate of marriage will level off. Likewise, same sex marriages will need some time for life to intervene before the same sex divorce rate can really be determined; since people are people regardless of sexual preference, it is likely that eventually the divorce rate of same sex couples will be about the same as opposite sex couples.
The bottom line is that if you choose to get married there is an extremely high likelihood that you will be divorced at some point down the road. If you do not have children, the chances are even greater since statistically marriages with children stay together at a slightly higher rate.[iv]
Given these facts and the reality that marriage can lead to assets that were once yours becoming marital property that can be allocated to your former spouse in a divorce,[v] there is a lot of wisdom in executing a prenuptial agreement before you exchange wedding vows. While there are many different forms of prenuptial agreements, also known as premarital agreements, most simply say that whatever each spouse owns when entering the marriage remains theirs through the marriage and will be their non-marital property if things end in divorce. Depending on the prenuptial agreement, property that is acquired during the marriage could be considered marital property if that is what the parties want; the parties could also elect to keep all of their property separate during the marriage.
Some suggest that a prenuptial agreement demonstrates a lack of love or trust or even an unspoken belief that the marriage will not last. As outlined above, any given marriage is just as likely to last as it is to fail so the best of intentions are not really relevant. Life happens. And if things change unexpectedly and you find yourself staring at a divorce complaint, unsure of what will happen next, there is comfort in knowing that the stuff with which you came into the marriage will still be yours after it ends.
And to those who say that people who ask their future spouse to sign a prenuptial agreement are not as kind and loving as those willing to give up everything, there is the alternative argument that those who balk at signing a prenuptial agreement could be perceived as interested in marriage for something more than love and kindness. Thus, “If you really love me you won’t ask me to sign,” is easy refuted with, “If you really love me then you will sign.”
The careers of lawyers who handle divorces are a testament to the fact that when marriages end they almost always end badly – otherwise they probably would not end. A well-crafted prenuptial agreement is one way to minimize the contentiousness of divorce if a marriage does not work out as planned.
If you are considering marriage and would like to learn more about prenuptial agreements, feel free to contact one of our family law attorneys.