Prenuptial agreements are gaining in popularity even, according to one source, at a fivefold increase, despite the fact that almost two-thirds of those surveyed believe that a prenup would weaken their relationship and likely increase their chances for divorce.

Indeed asking for (read: demanding) a prenuptial agreement creates significant risk to the pending nuptials and, for many, provides no real benefit while simultaneously creating substantial risk. Although there are situations (outlined in Part II of this series) in which an agreement's benefits outweigh its psycho-social risks, asking for one should never be a mere casual decision. Its costs are too high. Moreover, like a self-fulfilling prophecy, the prenup might itself plant the seed for exactly that outcome that the parties fear the most—a divorce!

In New York state, a prenup is not required to protect separate property. While there are some states that allow for the distribution of one spouse's pre-marital property to the other at the time of divorce, in New York a person's pre-marital property retains its "separate property" character and is not subject to distribution by a divorce court. So long as the owner of separate property does not change its character by, for example, re-titling it in both spouses' names, commingling it with marital property, or depositing it into a jointly-titled bank account, it will remain protected. Thus, in New York, a prenup is generally not needed to protect one's pre-marital property.

Similarly, under current law, if a married couple purchases real estate and one of them uses pre-marital, separate property for the down payment, a court will typically allow that person an "origination" credit equal to the amount of separate-property funds contributed to the property's purchase. If the property is sold at divorce, the separate property contribution is recouped after the mortgage is paid off, and any remaining equity is split between the parties. Again, no prenup is necessary to protect the separate-property contribution for jointly-titled real estate. (For some reason that isn't well explained, origination credits are applied only to real estate. Couples should, therefore, be forewarned not to transfer any money or assets that they want to have retain its separate property character, into a joint bank or investment account. The typical prenup, however, does not protect against such an intentional commingling anyway.)

Thus, under "standard" New York matrimonial law, assets owned before the marriage continue to belong to the party who owned them, and anything earned or acquired during the marriage belongs to the both of them. Because that tracks the general expectation of the contemporary public, it is near-nigh impossible to demand different terms without sounding like a scoundrel who is attempting to take advantage of the other.

The very predictability that the parties seek is also one of the prenup's greatest danger. While parties now have a clear idea about how to fairly divvy up their current belongings, life inevitably throws either curve balls or monkey wrenches into everyone's expectations. Thus, at the dissolution of their hopefully-long-lived marriage, parties' situations will invariably be different from what either of them had expected it to be.

In a divorce action, the court is mandated to distribute the parties' property "equitably" after considering their individual circumstances. Moreover, as the mores of society change, develop, and evolve, the law strives to catch up. When there is a valid prenup, however, fair-and-equitable under current standards is no longer a consideration. The parties remain bound by the immutable terms that they negotiated for themselves for the most part without regard to any injustice that might later occur.

A party may have given up an education, a career, and any hope for significant earning potential, in order to care for or raise a family. The parties' major asset may be a business that absorbed decades of the family's joint, constant efforts. Nevertheless, if that business was designated as separate property in a prenup and no provision made for the stay-at-home parent, the non-titled spouse will have no claim to, and receive perhaps only minimal benefit from (by way of increased maintenance payments), the parties' major asset, no matter the extent of the non-titled spouse's contributions to it or the family.

Such an in-hindsight-onerous prenup can result in what I call the "Pretty Woman" result, after the movie of that name. In those situations, the Richard Gere character need only ask the Julia Roberts character, "What street corner shall I drop you off at?" and owe her nothing more, despite the dramatic change of intervening lifestyle and expectations. Obviously, this result can be devastating to the non-monied spouse who has become accustomed (and perhaps morally entitled) to a better lifestyle, and its threat might even keep someone permanently trapped in an abusive relationship.

Alternatively, the tides of fortune may turn and the formerly-wealthy spouse who demanded a prenup may later be compelled to live up to what are now onerous obligations, well-beyond the person's current ability to pay. Because the terms were agreed upon, however, the courts will have very little ability to reform their agreement.

Asking for a prenuptial agreement damages the parties' relationship. There are certain things that once uttered aloud can never be erased, forgotten, or recanted. These utterances are so toxic that they continue to linger on in the ether, and infect the parties, even decades later. This is so, in typical cases, when a man tells his woman that he doesn't find her sexually appealing or when a woman tells her man that he doesn't satisfy her in the bedroom. They might continue to remain "happily" married for decades longer, but the insecurity, self-doubt, self-consciousness, and uncertainty continue to gnaw and endure no matter how many times it is renounced, disclaimed and denied by the person who originally uttered them or how much reassurance and penance is later given. Some bells can never be unrung.

The same is true if a person ever utters the "D"-[divorce]-word to a spouse or fiance. (To remain gender neutral, this article will use the term "fiance" to refer cumulatively to both a fiancė and fiancėe). The parties may continue to remain married but, like Pandora's ills once released, can never be corralled and reconfined to the repressed-subconscious. The thoughts continue to linger on, affecting them both as well as their relationship and commitment to each another. Neither is ever completely secure in their marriage, each wary of any sudden movement by the other.

Thus, at the time that the parties should be planning their lives together and joining in cohesion and unity, discussing and negotiating the terms of a prenuptial agreement requires them to give voice to the very threats they fear most, threats that are better kept repressed. Because a prenup sets the terms of divorce, the couple is thrust into adversarial stances one to the other at the very time they should be working in unison to create a shared bond.

Requesting a prenup further reveals that a party either lacks confidence in the viability of the marriage or questions their own commitment or that of their betrothed. No matter which, the request sets the other on high alert leaving them both feeling insecure about the forthcoming marriage.

Although every marriage ends in either marriage or divorce, the vast majority of people refuse to consider either. Perhaps they are justified in refusing to articulate such eventualities knowing that people lead happier lives in blissful denial and that by articulating an unwanted outcome they might create a self-fulfilling prophecy.

Additionally, when negotiating a prenup, a fiance may reveal more about themselves and how they treat others than they might intend or want to. For better or worse, negotiating a prenup shows each fiance who the other really is, what their values are, how they go about achieving their goals, and how they behave when they encounter resistance. It reveals whether the person is a fair negotiator and good sport. It reveals if the person is seeking a fair result or whether they are trying to take advantage of the other. It reveals if the person remains respectful even when they don't get the result that they want. How they behave under pressure. Whether they negotiate from a position of mutual care and respect. A person's behavior is the best indicator of who they really are and, therefore, might put the kibosh on the marriage by revealing more about themselves than betrotheds typically intend or want to reveal. While some argue that this is precisely the reason to demand a prenup—to see how the future spouse behaves under strain—it seems like an unwarranted stress test for the relationship that only the most solid can endure.

The prenup may inadvertently create a roommate relationship rather than the loving, committed marital partnership most people desire. In 1980, the New York state legislature transformed New York's divorce law by decreeing that all income earned during marriage belongs to both of the parties. New York recognized that a marriage is not only a physical and emotional partnership, but an economic one as well.

A simple prenup that opts out of this scheme and provides that each party's earnings remains the separate property of the party earning it, while having superficial appeal and being easy and inexpensive to draft, also means that the parties are no longer partners-in-life but only roommates sharing living expenses. Such an economic choice has profound psychological effects, each person knowing that there are clear boundaries and limitations to the relationship. They know that they are less than full life-partners. This knowledge alone could very well prevent their relationship from ever maturing into the lifelong emotional partnership, commitment, and unity that most marrying people desire.

A prenup that paves the way for a simple, easy, and predictable divorce could itself make divorce a too-easy option and remove the incentive for spouses to work hard to resolve the difficulties that inevitably arise in every relationship. The point of a prenup, its advocates argue, is to remove the common points of controversy and litigation typical in divorce actions, thereby reducing or eliminating its transactional costs. When difficulties arise as they inevitably do, a spouse may be lured by the seemingly-easy, well-prepared escape route, and forgo the hard work of confronting and dealing with the tough issues, and gaining the required insight, self-awareness and growth. Moreover, without the incentive to resolve things together, the relationship may remain perpetually stagnant at its nascent relatively superficial level.

Future articles in this series will discuss the circumstances that might warrant betrothed couples to incur these significant risks, and the techniques they and their lawyers can employ to minimize the damage and dangers that negotiating prenups often create.

Chaim Steinberger chairs the Custody Committee of the ABA Family Law Section and is a family law attorney, litigator and mediator in New York City. He is the author of "Divorce Without Destruction," "Make More Money by Being More Ethical," and "Father? What Father? Parental Alienation and its Effects on Children." He can be reached through his website, www.theNewYorkDivorceLawyers.com or by telephone, 212-964-6100.