The second time around

Prenuptial agreements for lovers

Author: Cheryl A. Rice
Posted: Tuesday, June 17, 2008
Love is lovelier the second time around, just as wonderful with both feet on the ground...” So sang Frank Sinatra. Fifty percent of all first marriages end in divorce. This sad statistic is well known. But, according to the U.S. Department of Health and Human Services, 64 percent of us remarry within five years.
Love can be better when you’re older, with more realistic expectations. But, with age can also come caution. Assets and a lifetime’s worth of savings need to be managed. Inheritances need to be secured. Scars from an ugly divorce may have left fear and the determination of Scarlett O’Hara to ‘never be
hungry again.’
Although more than 60 percent of all second marriages end in divorce, this doesn’t seem to be discouraging anyone. According to the website, 43 percent of all weddings taking place today in the U.S. are second marriages for one or both parties! This is where a prenuptial agreement, along with other legal paperwork, can come in handy. Often, discussion of such intimate topics as finance and final wishes can make for a more solid bond.
A prenuptial agreement, often referred to as a “prenup,” is a contract drawn up prior to marriage in which the division of assets, should divorce occur, is clearly spelled out ahead of time. They may have a “sunset clause” inserted, at the discretion of the couple, where after a certain date, the prenup expires. In some states, the prenup becomes automatically null and void after a set time or event, such as the birth of a child. This isn’t the case in New York State.
“They’re thinking about the band, and the restaurant and the ceremony, and you’re asking them to think about five or ten years in advance,” says Diane O’Leary, a lawyer with the law firm of Ostertag, O’Leary & Barrett in Poughkeepsie.
Steve Massardo, co-host of the John Street Jam, an informal music venue in Saugerties, with his second wife Terri, says, “Maybe if we didn’t like each other so much we might have thought about [getting a prenup]… The only thing I took from my last marriage was half the house and a handful of personal things, like my guitar, camera and cuckoo clock.”
But for many older couples entering into their second legal union, it’s an important consideration. “They’ve gathered some wealth or property. They’ve got a family. Maybe they want to avoid going through what they may have already been through,” explains O’Leary.
There is also the issue of long-term care. Unless protected by a prenup, in the event of a spouse needing full-time care, the burden of paying for that care could fall on the spouse with greater assets. In terms of a “yours, mine and ours” division, according to O’Leary, “if you have something before you’re married, if you keep it in your name, you won’t necessarily have a problem with it.”
Prenups can safeguard possessions or assets that you wish to leave to children or others of choice, although Ronald McCormack, a lawyer at the law firm of McCormack & Phillips in Nyack, says that a will is best for that.
In New York State, professional licenses and the enhanced earning capacity they represent can allow for
an inequitable distribution after your death to a previous spouse. If this isn’t what you want, McCormack advises a prenup to opt out of this. In general, pensions received from a previous spouse’s employment are not affected by remarriage, whereas many alimony arrangements are set up to terminate at that time.
Terri Massardo had other concerns: “After having to hand over my paycheck every week in my previous marriage, I was not so willing to watch it go into somebody else’s account….We both have our own wills and we have things set aside, trying to be fair.” The Massardos currently maintain separate bank accounts and divide household expenses evenly.
Will a prenup hold up in court? Jim Marzano, artist and manager of the A.I.R. Studio Gallery in Kingston, says that after consulting with a number of lawyers associated with his Father’s Rights support group, he decided a prenup wouldn’t be “worth the paper it’s written on.” After a difficult divorce, he entered his second marriage to physical therapist Nina Silverman without one, reasoning that, even with a prenup “once a spouse contests the terms and lawyers get involved, guess who ends up with most of the assets?”
McComack acknowledges that “sometimes when they’re not well thought through they don’t stand up in court.” But, he goes on to say that, “I always think it’s good, but it’s not required, to disclose all assets. I think it protects the security of the agreement.” 
O’Leary recommended that to strengthen a prenup, full disclosure is necessary, as well as putting it together as far in advance as possible, so that no claim of having been forced into agreement under duress can be legitimately made. She also recommended that each party have his or her own lawyer. “The more scrutiny this document has the more apt it is to hold up.”
Generally, prenuptial agreements should be considered for second marriages when either party
falls into one of the following categories:

  • You have substantial assets,   such as property, stock or retirement funds
  • You own part or all of a business
  • You stand to receive an inheritance
  • You have children or grandchil- dren from your previous marriage(s)
  • One partner is much wealthier  than the other
  •  You have dependents, such as elderly parents, who may need financial assistance

But isn’t all this talk about finances, well, unromantic? “It’s really unromantic to get divorced, but it’s a reality. You might as well start your relationship off by being honest and upfront,” says McCormack.
He encourages partners from the beginning to “design a plan to work through problems.” He says that couples counseling and mediation can be added to the prenup, in order to attempt to save a marriage in trouble. “I think that marriages are successful when you’re open and honest with your partner.”
And yes, he is married.

Cheryl Rice is a freelance writer living in Ulster County. She enjoys writing about health and personal issues.

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