The prenup problem

When my husband, Andrew, and I got married, signing a prenuptial agreement didn't occur to either of us. I owned less than nothing, thanks to my credit cards, so I had less than nothing to protect. It's odd that it didn't occur to my husband, since he had assets like a home and investments, but it didn't.

Off we strolled into wedded bliss, committed to the idea that whatever we earned, gained or found lying in a paper sack on the side of the road would be added to the community pot. We've never regretted the decision to forgo a prenup, and I don't expect we ever will, unless … yes, the D-word. Video: Why no prenup?

No one marries planning on divorce. A 2003 Harvard Law School study showed that although survey subjects knew the national divorce rate is more than 50%, they estimated their own likelihood of getting divorced one day to be about 12%. It's called optimism bias, and it's one reason only 1% of married couples reported prenups in a 2002 survey by Harris Interactive for Lawyers.com.

Amy Nixon is optimism bias incarnate. She's a 23-year- old newlywed who chose to skip a prenup for one simple reason -- she has no intention of ever getting divorced. "My husband doesn't believe in divorce, and neither do I," says Nixon, who is a fundraiser for the Virginia Holocaust Museum, a full-time student and an Army reservist. Her husband, Randy Martin, is a 20-year-old Army enlisted man doing a tour in Ethiopia.

The problem is that while Amy might not believe in divorce, it believes in her. Even Amy is aware that, as a couple in their early 20s, she and her husband stand a better chance of getting divorced than even the general married population. But she's still confident in her decision. "I felt if I wanted a prenup, I was indirectly telling him I didn't trust him," she says.

Many couples share her skepticism. When Erika (who asked that her last name not be used) got engaged, she had a unique perspective on prenups. She's a 30-year-old lawyer in Minot, N.D. She'd been a family-law attorney for two years and had helped many couples write prenups and many others get divorced. Still, when it was her turn, she opted out of a prenup.

"In the divorces that I saw," she says, "the determining factor of whether they were miserable or not was based on what type of people they were rather than whether they had a prenup."

She is fully confident her man would fight fair if the "D" day ever came: "It all depends on who you marry," she says. Video: Two types of divorce

There are times when circumstances clearly favor a prenup. A prenup may be legally required if one partner is heir to a closely held family business that requires its owners to legally protect their interests. If a couple is bringing children from a previous marriage into the

union, prenups can protect the children's right to their parents' assets. And since Kevin Federline departed his marriage to Britney Spears with only a reported $1 million of her $100 million fortune, we can assume that they both signed an airtight prenup -- much-needed protection when one partner is substantially wealthier than the other and that optimistic outlook turns out to be slightly delusional.

When Leslie Dashew, a consultant for family businesses, got remarried last year, she and her husband both brought children into the picture. A prenup made sense as part of Leslie's overall estate planning.

"That didn't make it any easier," she says. "It's difficult to talk about money. But what a prenup does is force couples to talk about what we have and what we're planning to do with it. What do we own individually, and what will we share?"

She says it's vitally important to have that conversation before marriage, whether or not a prenup is involved. A prenup merely forces a couple to get very, very specific about it.

Still, says Sheryl Kurland, an expert on long-lived marriages, having a prenup admits that divorce may one day be an option -- exactly the wrong attitude necessary for a successful union. Video: Do you have a prenup?

The author of "Everlasting Matrimony: Pearls of Wisdom from Couples Married 50 Years or More" says that among the couples she interviewed for her book, "the word divorce never crossed their minds." Which is, of course, why they were married for 50 years.

"I have many friends who have been divorced, and on their wedding day, they knew they were making the wrong decision," Kurland says. "There were always flags that they didn't tune into, and those are the things that blew up in their face as the years wore on."

But who doesn't put on rose-colored glasses when gazing at her betrothed? A rational observer might say that it makes sense to admit that you're wearing them, acknowledge you don't have your head on straight and cover your butt with a prenup.

No way, Kurland says. "A prenup is just an avoidance of issues and challenges until you fail." Video: Who owns the embryos?

In the end, in spite of all the legal documentation, conversation and calculation options available, the best prenup may be choosing a spouse well. At least, that's the prenup Andrew and I are going with.

Published Jan. 14, 2008