Whereas, years ago, marriage was primarily an economic arrangement between two people. One partner was expected to provide the other with children, a clean house, and dinner on the table at five o’clock, while the other partner was to provide financial support. In other words, it was usually a relationship where one person never remembered birthdays or anniversaries and the other never forgot them.
Although neither of these individuals may have been very happy with the arrangement, they endured it. A good marriage was seen as one that the parties survived, as opposed to today’s expectation of a good marriage where both parties are supposed to thrive.
In her book When Love Dies: The Process of Marital Disaffection, Karen Kayser, a clinical psychologist, writes, “Clearly, people have high expectations of marriage. When these expectations are not met, disillusion and disenchantment often set in. In fact, a high divorce rate itself may be partly a result of excessively high hopes for marriage, rather than an indication that people are turned off to marriage (Bardo, 1990). With high expectations for finding personal happiness in marriage, individuals may become more easily disillusioned when the partner does not fulfill them.”
What does this shift in the nature of marriage have to do with a prenuptial agreement? As John Witte, Jr. writes in his book From Sacrament To Contract: Marriage, Religion, and Law in The Western Tradition, “While theologians and philosophers have debated questions of the origin, nature, and purpose of marriage, jurists and judges have had to resolve them in general statutes as well as in concrete cases.”
And herein lies the problem. Before they get married, a couple should have signed a private agreement (read: the prenuptial agreement) between themselves which sets forth the division of their assets in the event of their separation, divorce, or death. If not, it will be up to state law and a judge who could give a rat’s ass about either of you to interpret the law and apply it to your case.
In forming your opinion about prenuptial agreements, please consider that for it to be enforceable, it MUST be FAIR, as opposed to the state law applied to your case. Imagine a spouse who has no job due to the agreement that they stay at home and raise the children, no separate assets, and no health insurance after the divorce to pay for the cost of treating an ongoing medical problem.
Wouldn’t it be fair after a thirty-year marriage to consider these factors in the distribution of marital assets and post-divorce support? In many states, regardless of how the state’s statute reads to a layperson or how we want these factors to be considered, most courts dispose of domestic relations cases quickly by applying a cut and dry division of assets. The amount and duration of post-divorce alimony are based upon a ‘rule of thumb’ regardless of the particular circumstances of the parties. On the other hand, a prenuptial agreement may provide that such facts be considered.
The other criteria for the prenuptial agreement to be enforceable is that both parties MUST fully disclose their assets. This provision is quite helpful for each party to know what the other has if one spouse predeceases the other. While each party may will their separate assets to whomever they wish, most agreements provide that the monied spouse leave a generous payment upon their death to the dependent spouse.
Further, both parties MUST have their own attorney, and the prenuptial agreement MUST be signed several weeks or, in some states, months before the marriage. It’s important to include an agreement as to alimony. If it is not included in the agreement, it may be considered waived, depending on state law. In some jurisdictions, if it is not raised in the document, then either party can go after the other for it. The one thing a prenuptial agreement cannot do is provide for or limit child support, deal with custody matters, or address any rights related to children.
In a nutshell, you can find as many articles on the internet that say a prenuptial agreement is bad for your marriage (7,250,000) as you can find that say a prenuptial agreement can strengthen a marriage (7,750,000). What they say and what I say is not as important as what you feel in your gut.
You can benefit from my experience as a divorce attorney, although my life experience has been the most eye-opening, and I hope it will help. Follow your gut because ALL the research on the subject agrees on one thing, if one person’s perception of a prenuptial agreement is negative, it will increase the likelihood of divorce. This blog was written to counter that perception and to ask potential newlyweds to keep an open mind about entering into a prenuptial agreement. I personally think it works better than going to court and slugging it out, hoping your lawyer can eat the face off of opposing counsel and pulverize the person you once loved.
The lesson here is to EDUCATE yourself before you get married about what you are getting yourself into in the state you are living in regarding division of marital assets and post-divorce support. All I’m trying to do in these blogs and in my forthcoming book, Around Which All Things Bend, is to sound the dog whistle that we as a culture in this country, like it or not, have entered into a new phase of being. It is now un-American to be unhappy in a line, in a restaurant, in a job, and, sadly, in a marriage. For this reason, I strongly recommend a couple spend less time picking out patterns of china, cutlery, and the like and more time focused on the pattern they wish their relationship to take in the event they decide to end it.
What does that mean? It means you both should educate yourselves about prenuptial agreements. At least consider whether one would be best for you. Just as you consider the venue of your reception, in the event your marriage doesn’t work out, consider what venue you would prefer, going to court and slugging it out or resolving your issues in a dignified manner.
Finally, many mediators now deal with helping a couple negotiate a prenuptial agreement which is often the healthiest way to proceed in coming up with a fair and reasonable resolution of financial issues. But remember, the agreement is still REQUIRED to be reviewed by a separate attorney for each spouse. In so many instances, using this mediated approach is almost akin to premarital counseling about financial matters that will pop up during the marriage, and it provides the couple with the communication skills needed to address these issues as they arise rather than have them fester and infect the marriage with what I call a case of “financial fungus.” Like so many illnesses that can be prevented by prophylactic care, so can dissolving a marriage over financial fairness through discussing the issues BEFORE they arise and agreeing on how to deal with them in a prenuptial agreement.
Legal Disclaimer: The information in this article is for educational purposes only. It does not constitute legal advice or establish an attorney-client relationship. I am a writer who is also a lawyer, helping laypeople learn about law-related issues. Consult a qualified lawyer in your jurisdiction for all legal opinions for your specific situation.