Modern Bride,
Vol 60 No. 5 p. 326
October 2008
Although the divorce rate has fallen to its lowest point
since 1970--3.6 divorces per 1,000 people in the 12 months prior to September
2006, versus a peak of 5.3 per 1,000 people in 1981--divorce remains a distinct
possibility in modern marriage.
And while statistics on prenuptial agreements are scant, "Younger couples
with fewer assets are looking into them more," says attorney and prenup
specialist Myrna Wigod, a partner at McCarter & English in Newark, NJ. She
adds that prenups are most common among older couples, often previously married
with their own children, who want to keep their assets separate; young couples
who have few assets now but expect to come into a large inheritance or family
business; and couples in their 40s, entering their first marriage, who have
been working for 20-plus years and want to keep what they've earned.
Even if you don't fit into one of the previous categories, you may want to consider
a prenup anyway& just in case. "If a decision to end the marriage has
been made, a prenup can ensure a quick, inexpensive divorce," says John
Mayoue, a divorce attorney in Atlanta whose past and present clients
include Jane Fonda, Sean Combs and Chris Rock. "If nothing else, prenups
are a memorialization of marital expectations and can well lead to less misunderstanding
and a stronger marriage from the beginning."
Alexandra Kirkman, a Brooklyn-based writer, is a former
senior reporter at Forbes.
What's Love Got To Do With It?
Atlanta
Woman Magazine
February 1, 2006
By Kate Yandoh
Is Valentine's Day the perfect time to start thinking about a prenuptial agreement? "Prenups are fairly essential for everyone now," says top divorce attorney John Mayoue, whose client list includes Jane Fonda and Marianne Gingrich. "It used to be a male-driven document, but, with women becoming more prominent in the workplace, getting wealthier, and having more to protect, it's not at all unusual for a woman to be initiating the conversation about a prenup - and it's exactly what she should do."
Prominent family attorney Tina Shaddix Roddenberry has also seen a rise in professional women interested in prenups, although she notes that many come to that decision because someone suggested it. "In the past, it was typically parents or grandparents advising a woman to consider a prenup. Today, it's as likely to be her board members or corporate lawyer. Another common reason is going into a second marriage with children to protect, especially in view of how Georgia law has been changing significantly in the area of family law - and the trend seems to be that more and more prenups are standing up to court challenges."
Still, according to a 2002 lawyers.com study, only 1 percent of Americans currently has a prenuptial agreement with a spouse or fiancé. A romantically inclined one in five "believe in true love and feel that a prenup is never needed when the two people involved really love each other."
"What's love got to do with it?" responds Mayoue, who is currently working on a book about prenups with the same title as a follow up to his 2004 Southern Divorce: Why Family Breakups have Fractured the South and How to Cope with It. "The divorce rate in 1960 was less than half a percent nationally. In a generation's time it's soared into the 60 percent range, with the highest rates right here in the 'church-going' South. It's not unromantic to set forth an understanding of what you want your marriage to be any more than it's unromantic to decide where you're going to live and what kind of house you'll buy."
Shaddix Roddenberry advises clients to take a similarly practical yet loving approach to bringing up the subject of a prenup. "You can explain that this is part of handling the business side of marriage. That you've worked for years and achieved things on your own, and you want to make sure that nothing happens to what you've built...not in an adversarial fashion, but as part of having the conversations you need to have if you want a strong, committed marriage that will last forever, and allow you both to share and grow together. It's a positive thing for both sides, but make sure you understand the complexities."
Like any contract, a prenuptial agreement can be as simple or complex as the drafters desire. Some of the standard provisions cover hard assets such as a house or vacation home, how marital money will be handled, if the prenup will change or 'sunset' over a period of time, and the amount of alimony to be paid in the event of the divorce.
Although he's definitely "not anti-lawyer," Mayoue doesn't believe a lengthy and costly legal process is required for a sound prenup. "I love the Internet. You can get samples, commentary and do-it-yourself forms that will fit for a lot of people. They can be relatively inexpensive documents. I prefer to have my clients get the basics down before we talk ... and you can definitely educate yourself without the expense of a number of office visits."
Shaddix Roddenberry suggests beginning a search for counsel by first finding "lawyers who do a lot of family law, who are members of the family law section of their local or state bar." You may also want to reference the American Academy of Matrimonial Lawyers, whose members have been admitted to the bar 10 years or more, have a 75 percent specialization in matrimonial law, and regularly pass exams on a wide range of matrimonial law issues.
Both lawyers agree on a few basic 'musts' of a prenuptial agreement:
The prospective husband and wife should have their own legal counsel. In addition to being fair, this also makes the prenup more enforceable since neither can later claim that they did not understand what they were signing. Both should provide full and honest disclosure of all assets.
Finally, bringing up the subject of a prenuptial agreement right before the wedding is never a good idea. Even though Georgia has no time limits on signing a prenup, meaning you could initial one the night before you head down the aisle (Mayoue once delivered one to a rehearsal dinner), the complex issues raised are generally better discussed without the emotion of wedding planning - and with ample time to think through and resolve them.
"Ninety percent of divorce is economically driven,"
says Mayoue. "That's true for the wealthy and less wealthy. While those
with more means might be more concerned about the kind of legacy they want to
leave, and those with less may be concerned with living in a way they can afford
and to what extent they want to be burdened by debt, we can all buy things,
we can all borrow and we can all choose to be voracious consumers - or not.
So I don't think people should be offended by the concept of a prenup. It simply
puts forth both people's understanding of what a marriage is and what it's going
to be."
U.S. News & World Report Vol.
136 , No. 18; Pg. 40
May 24, 2004
By Dan Gilgoff
More and more American children are growing up with same-sex parents
"We were afraid people out here would be skeptical
of us," says Sheri Ciancia, sipping a glass of iced tea outside the four-bedroom
house she and her partner bought last fall in Tomball, Texas, a half-hour's
drive from Houston. "Afraid they wouldn't let their kids play with ours."
"But we've got to take chances," adds Stephanie Caraway, Ciancia's
partner of seven years, sitting next to her on their concrete patio as their
8-year-old daughter, Madison, attempts to break her own record for consecutive
bounces on a pogo stick. "We're not going to live in fear."
A trio of neighborhood boys pedal their bikes up the driveway, say hello to
the moms, and ask Madison if they can use her bike ramp. The boys cruise up
and down the ramp's shallow slopes while Madison continues bouncing, the pic-ture
of suburban serenity. Despite their misgivings about relocating from Houston
to this tidy subdivision, the family has yet to encounter hostility from their
neighbors. "We have to give straight people more credit," Caraway
says with a wry smile. "I'm working on that."
Tomball--its roads lined with single-room Baptist churches and the occasional
sprawling worship complex, known to some locals as "Jesus malls" --may
seem an unlikely magnet for gay couples raising kids. A year before Caraway
and Ciancia moved here, activists in the neighboring county got a popular children's
book that allegedly "tries to minimize or even negate that homosexuality
is a problem" temporarily removed from county libraries. So imagine Caraway's
and Ciancia's surprise when, shortly after moving in, their daughter met another
pair of moms rollerblading down their block: a lesbian couple who had moved
into the neighborhood with their kids just a few months earlier.
Growing. Gay families have arrived in suburban America, in small-town America,
in Bible Belt America--in all corners of the country. According to the latest
census data, there are now more than 160,000 families with two gay par-ents
and roughly a quarter of a million children spread across some 96 percent of
U.S. counties. That's not counting the kids being raised by single gay parents,
whose numbers are likely much higher--upwards of a million, by most esti-mates,
though such households aren't tracked.
This week, the commonwealth of Massachusetts will recharge the gay-marriage
debate by becoming the first state to offer marriage licenses to same-sex couples.
The move has raised the ire of conservatives who believe gay marriage tears
at the fabric of society--and earned support from progressives who think gay
men and lesbians deserve the same rights as heterosexuals. But the controversy
is not simply over the bond between two men or two women; it's about the very
nature of the American family.
Gay parents say their families are much like those led by their straight counterparts.
"I just say I have two moms," says Madison, explaining how she tells
friends about her parents (whom she refers to as "Mom" and "Mamma
Sheri" ). "They're no different from other parents except that they're
two girls. It's not like comparing two parents with two trees. It's comparing
two parents with two other parents."
Many of today's gay parents, who grew up with few gay-parent role models, say
their efforts have helped introduce a culture of family to the gay community.
"In the straight community, adoption is a secondary choice," says
Rob Cal-houn, 35, who adopted a newborn daughter with his partner 20 months
ago. "But in the gay community, it's like, 'Wow, you've achieved the ultimate
American dream.' "
The dream has not been without cost, though. Gay parents and their kids in many
parts of the country frequently meet with friction from the outside world, in
the form of scornful family members, insensitive classmates, and laws that treat
same-sex parents differently from straight parents. In general, Americans are
split on the subject. A national poll this winter found that 45 percent believe
gays should have the right to adopt; 47 percent do not.
Many traditional-marriage advocates argue that marriage is first and foremost
about procreation. "It is the reason for marriage," Pennsylvania Sen.
Rick Santorum said last summer. "Marriage is not about affirming somebody's
love for somebody else. It's about uniting together to be open to children."
Other critics call gay and lesbian couples who are raising kids--whether from
previous marriages, adoption, or artificial insemination--dangerously self-centered.
"It's put-ting adult desires above the interest of children," says
Bill Maier, psychologist in residence at Focus on the Family and coauthor of
the forthcoming Marriage on Trial: The Case Against Same-Sex Marriage and Parenting.
"For the first time in history, we're talking about intentionally creating
permanently motherless and fatherless families."
Evidence? Three decades of social science research has supplied some ammunition
for both sides of the gay-parent debate. Many researchers say that while children
do best with two parents, the stability of the parents' relationship is much
more important than their gender. The American Psychological Association, the
American Academy of Pediat-rics, the National Association of Social Workers,
and the American Bar Association have all released statements con-doning gay
parenting. "Not a single study has found a difference [between children
of gay and straight parents] that you can construe as harmful," says Judith
Stacey, a professor of sociology, gender, and sexuality at New York University
and a gay-rights advocate.
Stacey and other researchers even suggest that gay and lesbian parents who form
families through adoption, artifi-cial insemination, or surrogacy may offer
some advantages over straight parents. "In the lesbian and gay community,
parents are a self-selecting group whose motivation for parenthood is high,"
says Charlotte Patterson, a psychologist and researcher at the University of
Virginia. But studies on the subject have so far examined relatively few children
(fewer than 600, by some counts) and virtually no kids of gay dads.
One study coauthored by Stacey and widely cited by both supporters and opponents
of gay parenting found that children of lesbians are more likely to consider
homosexual relationships themselves (though no more likely to identify as homosexuals
as adults) and less likely to exhibit gender-stereotyped behavior. "If
we could break down some of soci-ety's gender stereotypes, that would be a good
thing," says Ellen Perrin, professor of pediatrics at the Floating Hospital
for Children at Tufts-New England Medical Center. Focus on the Family's Maier
disagrees: "They don't have rigid gen-der stereotypes? That's gender identity
confusion."
While the debate continues, the number of kids with gay parents keeps growing.
According to Gary Gates, an Ur-ban Institute demographer, 1 in 3 lesbian couples
was raising children in 2000, up from 1 in 5 in 1990, while the num-ber of male
couples raising kids jumped from 1 in 20 to 1 in 5 during the same period. The
uptick is partly due to changes in the census itself, which in 1990 tabulated
most same-sex couples that identified themselves as married on census forms
as straight married couples. In the 2000 census, though, those couples were
tabulated as gay and lesbian partners. But the leap in such couples with children
is large enough to suggest a real spike. And because gay and lesbian couples
are sometimes reluctant to identify themselves as such on census forms, actual
figures could be much higher.
Moving in. What's perhaps most surprising is that gay- and lesbian-headed families
are settling in some of the most culturally conservative parts of the country.
According to the Gay and Lesbian Atlas, published earlier this month by the
Urban Institute, Alaska, Arizona, Georgia, Louisiana, and New Mexico are among
the 10 states with the largest number of gay families--along with more historically
gay-friendly New York, California, and Vermont. States where gay and lesbian
couples are most likely to have children (relative to the state's total number
of gay couples) are Mississippi, South Dakota, Alaska, South Carolina, and Louisiana,
in that order. "Same-sex couples who live in areas where all cou-ples are
more likely to have children" may simply be more likely to have children
themselves, according to the atlas. And couples with children--regardless of
their sexual orientation--are looking for good schools, safe streets, and outdoor
green space. "It's gay couples who don't have kids whose behavior tends
to be different: They live in more-distressed areas of cities, with higher crime
and more racial diversity," says Gates. "But a large portion of gay
people own their homes, live in the suburbs, and are raising two children."
Most of these children are the products of previous heterosexual relationships.
Madison, for one, is Caraway's daughter by a former boyfriend. Caraway says
the pregnancy forced her to come to terms with her homosexuality; she started
dating Ciancia soon after her daughter's birth. "If you stay in a relationship
but you're not in love or committed to the person, children sense that,"
says Caraway, now 31. "What kind of message does that send?"
But as these children enter middle and high school, their peers are more likely
to inquire about their parents' sexuality--and not always politely. The Tufts-New
England Medical Center's Perrin, who authored the American Academy of Pediatrics'
policy on gay parenting, says that children of same-sex parents "get stigmatized
because of who their par-ents are. It's the biggest problem they face by far."
Just like many gays and lesbians themselves, children of homosexu-als speak
of "coming out" as a long and often difficult ordeal. "You are,
on a day-to-day basis, choosing if you're out or if you're going to be hiding
the whole truth," says Abigail Garner, author of the recently released
Families Like Mine, about children of homosexuals." Is she your mom's roommate
or your aunt or your mom's friend?"
During middle school and part of high school, A. J. Costa, now a freshman at
Texas Lutheran University outside San Antonio, kept his mother's relationship
with a live-in partner secret. He grew close to his mom's partner, even pre-ferred
the arrangement to his mom's previous marriage, which ended when he was 7, but
never invited friends to the house. "I didn't want anyone to make fun of
me," says Costa. "Nobody was going to mess with my family."
Costa's fears were reinforced by some classmates who did find out and referred
to his moms as "dykes." But in the summer before his junior year in
high school, Costa visited Provincetown, Mass., for "Family Week,"
an annual gather-ing of gay parents and their children. "I couldn't get
over how many families there were, all like mine," he recalls. "I
realized that it wasn't about whether I have two gay moms. It was that I have
two moms. It was getting past the fact that they're gay."
Support. In recent years, support networks for children of gay parents and for
parents themselves have expanded dramatically. Children of Lesbians and Gays
Everywhere, or COLAGE, has chapters in 28 states. The Family Pride Coalition,
whose dozens of local affiliate organizations attract gay parents who want their
kids to meet other children of gays and lesbians, has doubled its member and
volunteer base in the past five years, to 17,000. Vacation companies like Olivia,
founded 30 years ago for lesbian travelers, now offer packages specifically
for gays and lesbians with children, and R Family Vacations, underwritten by
former talk-show host Rosie O'Donnell, will launch its inaugural cruise this
summer. Tanya Voss, a 36-year-old college professor in Austin who, with her
partner, has two young boys through arti-ficial insemination, plans to attend
the first Family Pride Coalition weekend at Disney World next month. Kids need
environments where "they don't have to explain their families," she
says, "a safe place where they could just be."
Still, neither COLAGE nor Family Pride Coalition has affiliate groups in Mississippi,
South Dakota, or Alaska, the states where gay and lesbian couples are most likely
to have kids. ("The way you manage in a more hostile environ-ment,"
says Gates, "is to go about your business and not draw much attention to
yourself." ) Many such states also pre-sent the highest legal hurdles for
those families. Roughly two thirds of children with same-sex parents live in
states where second-parent or joint adoptions--which allow the partner of a
child's biological or adoptive parent to adopt that child without stripping
the first parent of his or her rights, much like stepparent adoption--has been
granted only in cer-tain counties or not at all.
Absent such arrangements, a biological or adoptive parent's partner could be
powerless to authorize emergency medical treatment or denied custody if the
other parent dies. When Voss and her partner were planning to have their first
child, they decided Voss wouldn't carry the baby because her parents--who disapprove
of Voss's homosexuality--would have likely claimed custody in the event that
their daughter died during childbirth.
Gay-rights advocates argue that it's often children who end up suffering from
laws restricting gay parenting--and same-sex marriage. If a parent without a
legal relationship with his or her partner's child dies, a 10-year-old child
whose nonlegal parent was earning $ 60,000 at the time of death, for example,
would forgo nearly $ 140,000 in Social Security survivor benefits paid to children
of married couples, according to the Urban Institute and the Human Rights Campaign.
That's on top of the more than $ 100,000 in Social Security paid to a widow--but
not a gay partner--whose spouse earned $ 60,000. And without laws recognizing
them as legitimate parents, nonlegal parents are unlikely to be required to
pay child support if they leave their partner.
Recently, some states have further restricted adoption. Earlier this year, a
federal appeals court upheld Florida's ban on homosexuals' adopting children,
the only one of its kind in the nation. Arkansas now bans gay foster parenting,
Mississippi bans same-sex couples from adopting, and Utah bans adoptions by
all unmarried couples. "State legislatures that opposed gay marriage are
going to push to replicate what Florida has done," says lawyer John
Mayoue, author of Balancing Competing Interests in Family Law.
"We'll see more of this as part of the backlash against gay marriage."
Even so, more gay couples--especially male couples--are adopting than ever before.
A study last year found that 60 percent of adoption agencies accept applications
from homosexuals, up from just a few a decade ago. The 2000 census showed that
26 percent of gay male couples with children designate a stay- at-home parent,
compared with 25 percent of straight parents. "When you have children,
whether you're gay or straight, you spend lots of time wondering how good a
job you're doing for your kids; you lose sleep over it," says Mark Brown,
49, whose partner stays home with their two young adopted kids. "It doesn't
leave much time to worry about how we're being perceived by straight society."
Governing
magazine
Copyright 2003 Congressional Quarterly DBA Governing Magazine
December, 2003
By Alan Greenblatt
Common-law marriages are going the way of dowries.
To the extent that marriage represents a property contract between
two people, and not merely an expression of their love, states are requiring
couples to sign on the dotted line. The centuries-old institution of common-law
marriage is dying away.
Only 10 states still recognize new common-law marriages, which occur when a
man and a woman cohabitate and declare themselves to be husband and wife. "Many
sound reasons exist to abandon a system that allows the determination of important
rights to rest on evidence fraught with inconsistencies, ambiguities and vagaries,"
wrote Pennsylvania Commonwealth Court Justice Bonnie Brigance Ledbetter in a
September decision that ended the practice in that state.
Common-law marriages date from colonial times, when the country was mostly rural,
transportation was difficult and there weren't enough ministers or justices
of the peace to go around. In our current era, it's easy enough for couples
to obtain a marriage license and find someone vested with the authority to perform
the nuptials. (The complexities of choosing caterers and photographers for a
formal wedding celebration are another matter entirely.)
Because there is no legal documentation, it's always been very difficult to
prove--or disprove--whether a couple had entered into a common-law marriage.
Disputes are especially common after one of the alleged spouses has died. A
supposed wife or husband shows up to claim a share of the inheritance or insurance
and it becomes a question of his or her word against a dead person's as to whether
they were, in fact, married.
"It was only a matter of time before it was invalidated or terminated,"
says Stewart Greenleaf, chairman of the Pennsylvania Senate Judiciary Committee,
who notes that legislators would have acted if the courts hadn't beat them to
it. He says that it's become too confusing for health insurance carriers to
determine whether they are obligated to offer coverage to cohabitants claiming
to be married. "It's important for them to go through the formal ceremony
so there's no doubt about it."
It's rare that disputes about common-law marriages arise over anything except
money. That's one reason why insurance companies, although not making the issue
a major priority, have typically supported attempts to curb the practice. "The
standards of proof were so loose that someone could easily maintain a claim,"
says John Mayoue, a family lawyer in Georgia, which stopped recognizing such
marriages in 1997. "A lot of states were finding these claims or common-law
marriages were frankly fraud."
The standards of what constitutes a common-law marriage vary by state. It used
to be that couples were required to live together for a fixed period of up to
seven years before they were considered married. None of the states that still
recognize common-law marriages requires a specific time commitment. But couples
do have to present themselves as married--sharing not just a home but also the
same surname, joint income tax returns and the intention of getting married.
Some lawyers maintain that such marriages remain useful in protecting the rights
of individuals who otherwise might be denied their rights to shared property.
"From a purely legal point of view, it does solve some problems from time
to time," says Oklahoma state Representative Frank Davis. Where undocumented
marriages do cause confusion, Davis says, the courts are there to clear things
up.
Mayoue argues that because most states have changed their laws in recent years
to allow people who live together outside of the constraints of marriage to
enter into enforceable contracts with each other, there's no longer the same
need for common-law protections. In other words, people don't need to get married
to buy a house or enter into child-custody disputes together.
"This is something that has way outlived its necessity," says Oklahoma
state Representative Ray Vaughn, who has been trying to ban the practice in
the Sooner State for several years. "If they want to obtain benefits as
the result of their relationship, it seems to me that there should be some kind
of written evidence of the existence of that relationship. It could be a statement.
You could do it on the back of an envelope or a napkin."