Arlene Dubin

(WOMENSENEWS)–As couples sit down to celebrate a Valentine’s Day dinner tomorrow night, some conversations may be turning to an unromantic topic: the prenup.

With more women entering love and marriage with their own incomes and savings, they are increasingly taking precautions to defend their wealth and stay-at-home time from relationships that, in a divorce-prone age, can’t be banked on.

About a decade ago, the prenuptial agreement, that private legal contract between wife and husband, was mainly initiated by those with the largest fortunes to defend, most of whom were male. Since the publication of her 2001 book “Prenups for Lovers: A Romantic Guide to Prenuptial Agreements,” however, New York attorney Arlene Dubin has seen an exponential increase in the number of women employing her firm to initiate prenuptial agreements.

Because couples file nuptial agreements with their attorneys and are not required to register them with their states, it is not possible to say how many exist. But the Equality in Marriage Institute, a nonprofit group based in New York that aims to help people build strong relationships, also reports receiving a rising number of calls, mostly from women, seeking advice about the agreements.

Using a Rich Man’s Tool

With women marrying later, more of them have earned substantial income, savings and even property, says Dubin, a partner at Sonnenschein Nath and Rosenthal LLP. Although prenuptial agreements still are seen primarily as a rich man’s tool, more women are reaching for them as they find themselves with more valuable financial assets.

“They want to make sure their nest egg is going to be preserved because they spent so much time and energy acquiring it,” says Dubin, who believes that in a generation prenuptial agreements will become standard. “This is the way people will get married,” she says. “They are going too work out their own deals and not rely on the courts and the law.”

Dubin particularly recommends unmarried couples, including those who are same-sex, to draft a contract, such as a co-habitation agreement. “If they break up or there is a death, the world treats them as if they were strangers,” she says.

The prenuptial contract not only spells out how finances and property are to be divided in case of divorce, it also covers such lifestyle choices as whether or not a couple will have children. If done properly, it overrides state, family and probate laws that would apply otherwise in the case of death or divorce.

Frugal Years Add Up

Dubin recently worked with a woman in her 40s who earned a “reasonable” salary but had saved over the years and accumulated a half million dollars. She was marrying a man who had much less money and she wanted to make sure that no matter what happened she would not wind up with less than she brought into the marriage, says Dubin.

Dubin also gets calls from married women who never got around to making a prenuptial agreement but would like to craft a postnuptial agreement. Such after-wedlock contracts can be particular sought by those who have come into an inheritance or whose financial status has changed in some other way. Nuptial contracts are also used by women to ensure that certain of their assets go to children from a previous marriage.

Postnuptial agreements are subject to more scrutiny, Dubin says, because once married, individuals have less bargaining power. But she adds there is no better time for a woman to negotiate her future than when she is in love and about to be married, since that is when a partner will probably be most open to the idea.

Crafting a Relationship ‘Template’

Courtney Knowles, spokesperson for the Equality in Marriage Institute, says it makes sense that more women are initiating nuptial contracts since women are often the ones to find themselves more redefined by their relationships.

“Years ago there was a stereotype that the man brought home the bacon and the woman cooked it,” he says. “The man’s role has kind of stayed the same. But it’s women who bear the brunt of figuring out what the template for today’s marriage should look like.”

Both the Marriage Equality Institute and Dubin say they field calls from women planning to leave their careers in order to stay home and raise families. “Some women want to use prenups to protect their value in a relationship, to say, ‘I’m giving this all up to take care of our family and I want to make sure that that has a value,'” Knowles says.

Dubin says those women especially need to make sure that they are protected and will be compensated for their “non-monetary” contributions to the marriage should it end.

Financial educator Galia Gichon, based in New York City, is surprised by the number of stay-at-home moms she knows who not only leave the household finances up to their husbands but do not even contribute to their own retirement accounts. Given that the Census Bureau says elderly women who are single, divorced or widowed have a greater likelihood of living in poverty, Gichon says all women should be setting aside some money for retirement.

“The bottom line is, we live longer than men, we’re still getting paid less than men, we’re getting divorced, we’re widowed,” Gichon says. “Our finances play a crucial role in making sure we’re going to be okay.”

Leaving Money Up to Man and State

While Gichon has noticed that the women who have taken the time to focus on their finances are much smarter about managing them, she still finds a lot of women who let their partners make the financial decisions. The main reason: because they “don’t understand that stuff.”

The Equality in Marriage Institute’s Knowles says that despite the rise in nuptial contracts it’s still surprising that so few couples discuss finances before marriage. According to the Census Bureau nine out of 10 adults will say “I do” at least once in their lifetimes and about 50 percent of those marriages will end in divorce.

Yet, in a survey last year, the Equality in Marriage Institute found that 65 percent of respondents said they would not even consider the possibility of a prenuptial agreement. And 70 percent said they had not researched and did not understand the laws on marriage and divorce in their state.

The Equality in Marriage Institute–founded by Lorna Wendt after she went through a much-publicized divorce from Gary Wendt, former chief executive officer of General Electric Capital–publishes a 28-page booklet called “The Commitment Conversation” to help couples talk about financial issues and develop the terms for a contract.

In most states, when a couple divorces a judge will divide assets according to what is known as “equitable distribution,” or what is considered fair using about a dozen factors such as age and health and financial and non-financial contributions.

Knowles says unless couples want to leave control of their finances up to the laws of their state, they should consider drafting their own contract. To make sure the contract will be upheld in court, each partner should hire his or her own attorney.

Luchina Fisher is a freelance writer and producer in New York.

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For more information:

Prenups for Lovers: A Romantic Guide to Prenuptial Agreements:

Equality in Marriage Institute:

Down to Earth Finance: