Conditional Love – Times Publications, March 2008

Lester Ryan’s latest marriage lasted four years, 11 months and six days.

The timing of the divorce was deliberate. According to the couple’s prenuptial agreement and its so-called “escalator clause,” if the marriage made it to the five-year mark, Lester’s ex-wife would be entitled to substantially more spousal support and maintenance than if they were to separate prior to that anniversary.

“If I’m completely honest with myself, I have to admit the prenup was a factor in the timing,” says Ryan. “Our marriage was falling apart. Finally, we reached a point where we had to decide whether to take the gamble, go to counseling and give it another shot or cut our losses and move on. I chose the latter.”

In addition to the escalator clause, Ryan’s prenup also featured a “fidelity clause,” which provided a decreased payout if one spouse committed adultery, and a “no-contest clause,” which would have required one party to pay the other’s legal fees if they were to contest the validity of the agreement.

According to Ryan, the prenuptial terms were a way to ensure that his third marriage would last… or at least minimize his financial losses if it didn’t.

“I wasn’t exactly a stranger to divorce,” the 54-year-old Scottsdale resident says chuckling. “It would have been silly to pretend that it wasn’t a possibility this time around. Getting a prenup was never a question. It was just deciding on the terms.”

With national divorce rates hovering around 50 percent, and the rate even higher in Maricopa County, more couples are opting for prenuptial agreements than ever before.

But it’s no longer just about alimony and assets; prenups are now being created to govern future marital behavior.

Prenuptial “lifestyle clauses,” covering everything from the number of times a couple has sex in a week to how much weight a partner is allowed to gain in order to avoid a fine, are well documented in the annals of celebrity gossip. And while critics contend they are simply plans to fail, the oft outlandish terms are finding their way into an increasing number of prenuptial agreements belonging to ordinary Valley couples.

“In a prenup, you can be as creative as possible, as long as both parties are comfortable,” says Alexander Nirenstein, a founding member of Nirenstein Ruotolo Group, a family law firm. “Celebrities come up with these types of clauses, and they are enforceable, and then regular people hear about them and say, ‘I want to do that too.’”

I Do. However…

In the Valley, attorneys credit an increase in the number of prenuptial agreements to Arizona’s marital property laws and the state’s high divorce rate.

Arizona is one of nine community property states, meaning anything earned or purchased after the wedding is joint property and divided equally in the case of divorce. Prenuptial agreements override state laws, legally predetermining the distribution of almost anything shared by the couple, from pets to country club memberships.

In 2006, there were 23,379 marriages in Maricopa County and 15,771 divorces filed. While definitive divorce probabilities are difficult to gauge, evidence suggests that a couple married in Maricopa County during 2008 may have as high as a 65-percent chance of seeing the alliance end in a divorce.

“The state is so transient, and people are coming and going all the time,” says Nirenstein. “Couples come here and hope they’re going to change everything wrong in their marriage and their relationship. It simply doesn’t work.”

Since prenuptial agreements are not required to be filed in court, speculation on the number of active agreements in the county varies, but lawyers agree the demand for prenups is higher than ever before.

Eighty percent of lawyers saw an increase in prenups during the past five years, according to an October 2006 survey by the American Academy of Matrimonial Lawyers. And in a poll by the Institute for Equality in Marriage, 16 percent of respondents said they had a prenuptial agreement in place. The survey also revealed that couples who marry in their 30s and 40s are more likely than previous generations to go the prenuptial route.

“Generally I see prenups more commonly in second marriage situations,” says Thomas Griggs, a family law attorney in Mesa. “There are more people going into a second marriage, and these couples are looking to have some sort of control over their financial life, if that second marriage should unfortunately fail.”

Although prenuptial agreements have the potential of saving a divorcing couple a lot of time, anguish and thousands of dollars, not everyone is fast to profess the advantages.

In 2003, a Harvard Law School study revealed 62 percent of those surveyed said requesting a prenuptial agreement would send a “negative signal” about the future of the marriage.

“A prenuptial agreement represents a negative. It’s saying there’s a high possibility that the marriage will fail,” says Sheryl Kurland, a relationship trainer and author of “Everlasting Matrimony: Pearls of Wisdom from Couples Married 50 Years or More.” “With a prenuptial agreement you’re basically saying, ‘I have one foot out the door before it even starts,’” she says.

Kurland says the idea of signing such an agreement goes fundamentally against everything that marriage is about.

Experts also say the process of establishing a prenuptial agreement is often grueling and can get ugly. In fact, lawyers interviewed for this story said it is not uncommon for a couple to end their relationship over disagreements concerning the prenuptial agreement.

“Supposedly it’s going to make it easier if you want to get a divorce, which it doesn’t at all,” Kurland says. “It actually probably complicates it even more.”

The Prenup from Hell

Dressed in Versace and with prenup in hand, Lona Smith, 31, arrived at her attorney’s office, ready to dissect the document, line by line.

Just one month prior, in May 2004, Smith’s fiancé, Zack Schiffman, presented her with the 55-page prenuptial agreement and casually mentioned she would need to sign the document prior to the planned ceremonies and suggested she seek the counsel of an attorney.

Not necessarily opposed to the idea of signing a prenuptial agreement, Smith complied, figuring she’d sign it and get back to planning her lavish wedding.

But as her lawyer began to explain Schiffman’s demands, it became clear that this wouldn’t be a quick or easy process.

Among other things, the “vicious” prenup would have given Schiffman Smith’s power of attorney and required her to receive written documentation accompanying every gift he would give her during their marriage authenticating that it was, in fact, a gift. If they were to end up divorced she was entitled to only the money she put into the home, and if he was the one who asked for the divorce, she would have to vacate the home within 30 days.

By page 20, Smith says she was sobbing, mascara running down her face.

“In the first draft, the most outrageous thing to me was I could not sign a legal document without his permission. I went psychotic over that,” recalls Smith. “We had been together for eight years. We were a young couple growing our relationship together, and to put such strict and harsh rules in a prenup, I was like, ‘Oh, my God.’”

Angry with her fiancé and the “absurd and degrading document,” Smith countered his with some requirements of her own. Her demands stipulated that in the event of divorce he was required to pay for a personal trainer, dermatologist and any plastic surgery she wanted. She would also receive custody of all the couple’s pets, and he would be barred from remarrying for a decade.

The next 737 days consisted of dozens of drafts, five fired attorneys, countless screaming fights and two cancelled wedding dates.

It wasn’t until they decided to stop going through their attorneys and sat down and decided on the terms together, that they were able to draft a document they could both agree on.

Twenty days after finalizing the agreement, they were wed.

“At the wedding, my mom was crying because she was like, ‘I never thought we would see this day,’” Smith says. “But Zack and I have such similar personalities, it’s kind of like we have to be together. Making it through this prenup was such a huge feat; I’m convinced our relationship can survive anything now.”

To help others to avoid the torture she endured, Smith turned her experience into a book, “Help, He Wants Me to Sign a Prenup.”

Looking back, Smith says she realized both she and her fiancé handled the process poorly and would like others to learn from their mistakes.

“It’s a scary process. It’s like getting a divorce before you’re getting married,” she says. “I don’t want anyone else to go through as much pain and suffering as I did. So I decided to put this book out there, so people can get this done. A prenup doesn’t have to ruin your relationship, and that’s what happens in a lot of cases.”

‘Til the Prenup Do Us Part

The most typical type of prenuptial agreement simply segregates spousal assets. Whatever is earned before and during the marriage remains separate, any jointly owned property is divided.

An increasing number of betrothed are coming up with specific demands to control future marital behavior. The clauses are written into the contract like a promise from one partner to the other, with financial incentives for upholding the bargain and punishments for breaking it.

The attorneys at NRG Family Law say over the years they’ve known of lifestyle clauses that include weight requirements limiting a wife’s weight to 120 lbs., with a $100,000 penalty if not upheld, or including a $500 fine for each excess pound of weight gained. Prenups can also feature intimacy clauses governing the number of times a week or month the couple will have sex, and have even been known to mandate specific sexual positions. Other far-out clauses include restrictions barring the in-laws from staying over for more than two consecutive days.

“We’ve heard about clauses that stipulate whether or not someone has to have a baby by a certain period of time,” says Nirenstein. “That’s always an interesting one.”

Some recent celebrity prenups have even included requiring a husband to pay $10,000 each time he’s rude to his wife’s family and allowing a spouse to perform random drug tests, with financial sanctions for a positive result.

But perhaps the most popular lifestyle clause in modern-day prenuptial agreements is the one covering animal custody issues.

“To tell you the truth, we’ve had some of our biggest arguments between parties concerning animals,” says Jeffrey Leyton, a partner at NRG Family Law. “If both parties come to an agreement about what to do with the dog or the cat, the court will affirm it.”

Although these clauses are gaining in popularity, they are still fairly rare.

“The clauses aren’t always enforceable,” says Victor Garnice, a partner at NRG Family Law. “But because the clients are dead set on having it in there, you put it in there.”

Love Contract

A prenuptial agreement seemed like a natural decision for Scottsdale residents Robert and Becca Green before they walked down the aisle last year.

As established professionals, Robert, 37, a mortgage broker, and Becca, 34, the owner of a successful cleaning business, decided a prenuptial agreement was a wise way to protect both their assets. Their standard agreement basically states that whatever they bring into the marriage they are entitled to take back if the marriage ends.

“I don’t think it means we don’t trust each other,” says Becca, who was married once before while in her early 20s. “We’re just being practical. I think our marriage will last forever, but if it doesn’t, I don’t want (our divorce settlement) to be decided by some judge we don’t know.”

In fact, the subject of a prenup was brought up at the breakfast table shortly after they got engaged.

“She brought it up,” says Robert. “She looked at me and said, ‘What do you think about prenups?’ It was really funny because I was trying to decide how to bring it up delicately.”

The couple discussed their options, did some research and both engaged their own attorneys. The process took a few months to complete.

They both say it was a smart decision and they are surprised more couples don’t get them.

Allison Shulman, founder of Shulman Legal, a family law firm in Tucson, agrees. “I can’t think of any reason where it would be advisable not to have a prenup,” she says. “It’s not just for really wealthy people. Prenups are for anyone. Whether you’re just starting out or it’s your second shot at love, there are a lot of reasons why you want to talk about things and get them on paper.”

When someone mentions the word prenup, there is an assumption that the marriage isn’t going to last, Shulman says. But that presumption is changing. Someday, Shulman expects prenups to become the norm in marriages.

“For a long time prenups were seen as planning for divorce, but now it is more of a precursor of a mature, trusting relationship,” Shulman says. “It really can be a marriage enhancer. It’s an opportunity to really talk about what your financial personality is, what your goals are and how you want to deal with a very important aspect of your marriage.”

Not so, says marital expert Sheryl Kurland.

“If you don’t have trust in the person that you’re marrying to begin with,” she says, “why would you marry them?”