Tiger Woods recent marital problem highlights the need for premarital agreements sometimes called prenuptial agreements.  There’s been speculation that Tiger Woods and his wife may have reached an agreement to stay married and avoid divorce — which in Texas is called a postnuptial agreement.  The gritty details of actor Dennis Hopper’s and golf aces Tiger Woods’ and Greg Norman’s prenups have all been hot topics on the internet.

Suze Orman encourages every engaged couple to get one to protect their current and future assets as well as to sheild themselves in case a mate secretly runs up massive credit card debt. "People are hopeful," Orman says. "They want their relationship to last. … It’s just natural that they don’t think they’ll need a prenup. Never in a million years do they think (divorce) will happen." In 2008, the divorce rate was about 50%. Among married Americans, the median duration of their wedded life in 2008 was 18 years, according to Pew Research Center’s analysis of government data. Given those odds, "Hope is not a financial plan," says Orman, who urges that every couple get a prenup. "The time to plan for a divorce is not when you’re in a state of hate," she says.

Among the divorced, 15% say they regret not having a prenup in their most recent marriage, according to the Harris poll. Men are more likely than women to have this regret, at 19% vs. 12%. Nearly 40% of divorced Americans also say they would ask their significant other to sign a prenuptial agreement if they remarried.

Elizabeth Gilbert, the author of Eat Pray Love and Committed, advocates for couples to get prenups:  "Marriage is not just a private love story but also a social and economical contract of the strictest order," she says.  "If it weren’t, there wouldn’t be thousands of municipal, state and federal laws pertaining to our matrimonial union."

USA Today writer Laura Petrecca in the USA Today article Prenuptial agreements: Unromantic, but Important cites to a Harris Interactive study that nearly 2/3rds of singles say they would ask for a prenup.  On the other hand, of those polled, only 3% actually had prenups.

That statistic may mean that prenups are on the rise.  Or, it could mean that they chicken out of throwing cold water on the afterglow of the engagement. Let’s face it: The afterglow of that Valentine’s Day proposal often begins to dim as discussions of wedding details get started. The happy couples face potential buzz killers that are financial (how to keep reception costs down), logistical (where to seat relatives not on speaking terms) and, in recent years, even more controversial (So, honey, I love you, but how about that prenuptial agreement …).

The prenup seems so utterly unromantic — or just plain wrong — but it’s also become so right for so many these days: those keenly aware that a marriage may end up in a legal separation, divorce or death. Most prenups tackle financial issues such as real estate, division of bank accounts and potential spousal support in the case of divorce or separation.

Prenups can focus on the obvious disparity in earnings or wealth, credit card or student loan debts, future spousal support, or child support paid to children from another relationship.  But prenups can also address emotional or behavioral issues.  One example cited in the USA Today article references a husband who wanted to make sure his wife remained drug-free so he conditioned payment of spousal support upon a clean drug test each month.  Other prenups have addressed issues such as adultery, intimacy, weight-gain, division of household duties. Those clauses may seem unnecessary to some folks, but nailing down what is important to each individual — be it the ownership of a ski house, retaining the rights to an antique tea set or determining who keeps the pets after the breakup — is vital to do before the marriage laws kick in.

The bottom line is that a prenup can address whatever issues are important to the spouses — from simple identification of assets and debts going into the marriage, to the more complex issues about how the marriage relationship will work.  There is really no "form" prenup — it should contain the provisions that are important to the people signing it.  A prenup gives the soon-to-be-spouses a way to re-write the law that governs a divorce to conform to their own expectations.

Keep in mind, however, that even if  a prenup is executed, a party may still seek to challenge it.  Under Texas law a person may challenge a prenup based on the circumstances surrounding its signing — was it signed under "duress"?  Or, it may be challenged based on the contents being so unfair as to be termed "unconscionable".  Parties to a prenup must make a full disclosure of income, assets, and debts.

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 30+ years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 30+ years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW for multiple years. She was named one of the Best Lawyers in America and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.