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Legal VIEW

Signing on the Line Before Tying Knot

September 18, 1986|JEFFREY S. KLEIN

It is legal to plan your divorce before you get married.

Some people, especially those who have been divorced before, even recommend it.

Historically, most courts felt it was somehow "wrong" for a couple before marriage to resolve the many issues they might later face if they decided to divorce. It made divorce too easy, and courts were supposed to protect the sanctity of marriage.

Legal Contracts

Times have changed, divorce is now commonplace, and the courts have recognized that sad fact. Although many states once ruled that marriage contracts or so-called prenuptial agreements were null and void, the majority of states that have considered the question now find such contracts to be legally permissible.

In California, contracts that promote divorce are not likely to be upheld, but, at least since 1976, contracts made in contemplation of a possible divorce are enforceable, with some restrictions.

In fact, some judges have even suggested that planning for a divorce in advance--by contract--could even make the marriage last longer.

I'm a romantic at heart, so I find that proposition hard to believe. I can't imagine that it would be much fun to sit down with your intended spouse, with or without each of your own attorneys present, to negotiate the terms of your marriage contract.

Others, however, have argued that the negotiating process itself forces the marriage partners to discuss and think through many of the potential problems that may arise during the marriage, such issues as birth control, child care, spending habits, sexual preferences and property ownership.

The couple may learn to their surprise that the marriage they thought was made in heaven is headed for the rocks. (The romantic in me still believes these discussions are more appropriate during a candlelight dinner than across a negotiating table.)

Marriage contracts can cover small details of the marriage itself--describing who will take out the garbage and who will change a baby's diapers--or they can simply be limited to the division of property upon divorce.

However, it is unlikely that a court will enforce most of the provisions in a marriage contract that regulate personal behavior. You don't hear very often of an injunction forcing a husband to help with the dishes, even if he promised it in a marriage contract. So the value of these provisions is to set guidelines for the spouses so that each knows what is expected of the other.

In Interest of Children

Courts are also unlikely to enforce provisions concerning child support after divorce, because the court is authorized to act in the best interests of the children. Still, a court may give some credence to the parties' original wishes, as set forth in a marriage contract.

On the other hand, courts regularly enforce provisions in a contract dividing a couple's assets and property in advance, so if and when they are divorced, they won't have to fight about who gets what. These are the most common types of marriage contracts. They are especially useful when the future husband and wife are embarking on a second marriage and have large, complex financial estates or grown children worried about their potential inheritance.

If you're considering such an agreement, make sure there is a full, frank and truthful disclosure of all assets. One party should not coerce the other party into signing. The Maryland Supreme Court once noted that if a husband and wife are going to sign on the dotted line, it would be a good idea for each of them to consult his or her own lawyer before saying "I do."

If you don't want to see a lawyer, but would like to know more about marriage contracts or review a couple of form contracts, pick up a copy of "California Marriage & Divorce Law" by Ralph Warner and Toni Ihara. The book is published by Nolo Press, 950 Parker St., Berkeley, Calif. 94710.

Attorney Jeffrey S. Klein, The Times' senior staff counsel, cannot answer mail personally but will respond in this column to questions of general interest about the law. Do not telephone. Write to Jeffrey S. Klein, Legal View, The Times, Times Mirror Square, Los Angeles 90053.

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