Marriage pre-nuptial contracts

It's a misleading question. The fact is, you already have a marriage contract if you're married. If you're not, you will have one if you marry in the future. Unless you substitute your own written contract, your marriage contract consists of the domestic relations laws of your state as interpreted by its courts. Just as state law determines who gets your property if you die without a will, so it determines your marital obligations in the absence of you and your spouse's own written contract.

There's an important difference, however. Wills are common, traditional and encouraged. Marriage contracts, prenuptial agreements and live-together agreements are still uncommon, are not traditional, and are generally not favored by courts, lawmakers or the public. If they ever need to be enforced, you can expect judges to examine them closely and to refuse to enforce provisions that seem unfair, unreasonable or contrary to public policy. That can cover a lot.

The traditional vows, "To love and to cherish...for richer, for poorer...in sickness and in health...till death us do part," are incompatible with a detailed contract that lists property item by item, says who can have what kind of bank account and discusses alimony. To most of us, the former is romantic but also rich and meaningful, the latter far too cold and calculating. It certainly suggests less commitment. One can argue that couples who hold too much back from a marriage shouldn't receive full recognition of that marriage from society or the law. But with about half of all marriages ending in divorce, doesn't it make sense to provide for the possibility in advance? Maybe.

Experts disagree about who should have a written marriage contract. Some think all couples should consider one, while others would reserve them for special situations, such as where one party has adult children by a previous marriage and considerable property and the other party is much younger. The older spouse-to-be may wish to insure that his children inherit the bulk of his estate and that his new wife does not "elect against the will" for her widow's share. Even if relations between the new wife and the grown children are cordial, they're not likely to be close if they're about the same age. A marriage contract could also make sense to back up a buy-sell agreement for the transfer of a business.

Don't even consider writing a marriage contract without a lawyer. It's a tricky area. Both parties will need their own lawyer. Here are some questions and issues worth thinking about and perhaps including in your contract, in addition to whatever particular issue makes a written contract desirable:

• Support of children, former spouses and dependent relative
  
• Paying for household expenses
  
• Dividing premarital property in the event of divorce
  
• Dividing marital property in the event of divorce
  
• How to end a business partnership between the parties
  
• What names the parties will use
  
• How to change or end the agreement