Ms. Judith Nathan
New York, N.Y.
Dear Ms. Nathan:
We don't know each other, but I recently read that your boyfriend, Rudy Giuliani, reached a $6.8 million divorce settlement with his ex, Donna Hanover. Forgive my presumptuousness, but I couldn't help thinking that after two years together--much of it (given September 11, his prostate cancer, and his humiliating public divorce battle) spent under the most trying circumstances imaginable--you and he might soon be ready to tie the knot. If you do, as much as he says he loves you, I'd wager he'll insist on a pre-nup.
Let's face it: When he married Donna in 1984, he was just an ambitious prosecutor, with no extraordinary assets to shield. But now, he's a national hero, a man who soothed us through one of the worst calamities in U.S. history. For that, he has earned the right to charge $100,000 a pop on the rubber-chicken circuit, spill his guts in a multimillion-dollar book deal, and do who knows what else to rake in the dough. If you think he isn't going to want financial protection this time around--if only to secure the inheritance rights of his children, Andrew and Caroline--you're not only blinded by love, you're rendered senseless by it.
I'm no lawyer, but in my capacity as a columnist on women's issues, I've learned a lot about pre-nuptial agreements. So let me give you a bit of advice: A pre-nup is executed typically for the benefit of the partner with more money. Mere mention of the word can be a romance killer. But if it comes down to a choice between the contract or the guy, sign the papers--and make sure you draft something that's as advantageous to you as possible.
Start with a good matrimonial attorney--and choose him or her yourself. Don't just hire one of Rudy's chums (unless you think you may want to get the agreement nullified someday by playing the conflict-of-interest card). Since pre-nups are thrown out mostly on the basis of legal technicalities, you need someone who stays on top of the law. For example, New York recently changed the language in the notary section for all marital agreements. So if you had an existing agreement and didn't have the revised language, it wouldn't have held up in court. Other technicalities that cause pre-nups to disintegrate include the failure of a spouse to disclose all assets and not allowing ample time (say, at least a month) to review the document before marriage.
Insist on a "sunset" provision. That's an expiration clause that voids the contract as of a certain date. These provisions are often used as negotiating tools: The partner with fewer assets can argue that if the marriage lasts, say, 10 years, the couple is likely to stick together 'til death do them part. Indeed, that's probably what Jane Welch thought when she married former General Electric CEO Jack Welch in 1989. Then, last December, she discovered that her husband was having an affair with a Harvard Business Review editor. Now, she's thanking her lucky stars that her pre-nup expired in 1999--since she's undoubtedly going to get much more of his half-billion-dollar-plus fortune than she would have been entitled to otherwise.
Sunset clauses differ depending on what you want to accomplish. Some simply nullify the agreement. Others protect certain income and assets from ever becoming joint marital property even after the pre-nup expires.
I would also include some additional clauses. You can spell out almost anything: who gets the Yankees tickets, custody and visitation rights to the dog. The more clauses, the better--to protect your interests and increase the chances that some judge down the line will find one of them distasteful and throw the whole contract out of court.
One last piece of advice: Pre-nups are like wills--a change of circumstances warrants a change in the document. If the two of you buy a house in the Hamptons, you want to be sure the pre-nup recognizes your share.
Take it from me, Judy: Stay one step ahead, and you won't be left behind. Good luck.
By Toddi Gutner