Gavel to Gavel: Marriage, the sole cause of divorce

by McAfee & Taft
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McAfee & Taft

published in The Journal Record | April 5, 2018

Spring brings weddings. Cue delightful melodies as couples waltz toward union.

Most engaged couples, however, focus on selection of dresses, tuxes or cake, and ignore that marriage imposes statutory and constitutional consequences, limitations and rights. Couples should consider this fact, and then consider whether a premarital agreement should be prepared, particularly where there is ownership or management of family or joint business interests, trusts, real estate or investments. While nobody enters into marriage expecting failure, marriage imposes general property rights and obligations, residual from times past, that a modern couple may choose to alter.

The Oklahoma Supreme Court recently reminded us that marriage begins with a civil contract. Oklahoma law defines marriage as a personal relation arising out of that civil contract. An antenuptial agreement, commonly referred to as a prenuptial agreement, is an additional contract related to the marriage contract, but signed before marriage. In it, the parties agree that should the marriage dissolve, each will exit with what they brought. One party’s attorney will draft the agreement, and the other party should engage separate counsel to review it with him or her.

An antenuptial agreement is a default position and does not preclude willing transfers during marriage. It becomes important only if the spouses find themselves entirely at odds with each other. With an antenuptial agreement, the couple takes the proactive step to clarify their contract of marriage beforehand, and should experience less friction if the marriage is dissolved.

Another benefit, an antenuptial agreement should help reduce attorneys’ fees and costs in the event of a fractious divorce. By statute, Oklahoma courts in divorce must give effect to any antenuptial agreement of the parties, and the result should be a more streamlined, efficient and less costly divorce.

Sometimes in the whirl of wedding events, distracted and emotionally hopeful parties have been heard to suggest that an agreement could be signed later, or even back-dated. That is not true. Such agreements entered into or signed after marriage can be found by courts to be unenforceable, and have no effect.

So, while wedding garments are being tailored, it might be worthwhile to visit an attorney to obtain an antenuptial agreement, a fairly painless process. The parties then can tuck it away, hope they never need it, and enjoy the wedding.

This article appeared in the April 5, 2018, issue of The Journal Record. It is reproduced with permission from the publisher. © The Journal Record Publishing Co.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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