I had been talking to a few women recently who surprised me by saying that they wouldn’t marry a man who insisted on a pre-nup. I kind of felt like it had a lot to do with the actual terms of the pre-nup, but their argument was that it shouldn’t even come down to having to sign a legal document just to set everything straight, it should be all about trust.
I feel a little :dubious: about this. Some of them had been married, and said that in the divorce they voluntarily walked away with relatively little because they didn’t want to bicker over possessions with someone they then were over and done with. While I think its great to take lawyers out of the equation in regards to splitting everything up/working out child custody and visitation, but just trusting someone to do it that way when the time comes is a bit of a stretch.
It seems like kind of a dilemma: If the person brings up the prospect of a pre-nup, it kind of implies they might lack faith that the marriage will work, and that everything will be amicable if it doesn’t. But if the person just trusts the person and gets screwed over later, maybe the other person does a total 180 later on down the line, the first question on people’s minds is probably, “Why didn’t you get a pre-nup?”
Before I start what is sure to be a long and opinionated response let me give a bit of background so you know where I am coming from. I went through a very amicable divorce, no lawyers, no custody disputes, no squabbling over who got what. It was very civilized. We went together to the courthouse, got pronounced “divorced” then picked our son up from school and went to dinner as a family.
Then later I moved in with my then SO. We wanted to be fair and to “protect ourselves” in the event of a break up so we drew up and filed all kinds of domestic partner agreements, contracts, and just a bunch of legal nonsense. We had what amounted to a pre-nup and clearly defined who got what and what all would happen in the event that we broke up. When we did break up it was a disaster. I ended up spending more than $10,000 on lawyers and courts and defending against frivolous lawsuits only to end up with far less than I started with and ended up totally screwed over in every possible aspect. It turns out that the contracts that were meant to “protect me” actually gave him all kinds of leeway to interfere with my life.
Going through all that made me truly understand that all the contracts and legalese was just setting him up, in other words he really went into the relationship with the intentions of it not working out.
If my current (and final!) husband had suggested a pre-nup I would have run screaming into the night. Sure the marriage might not work out forever, but going into it with the thought that it might not work and preparing for that eventuality just seems to me to be the same thing as planning the divorce before the vows. I came into this marriage trusting and knowing in my heart of hearts that it is forever. If there was the slightest doubt, I would not be married, and that is the same kind of “knowing” I wanted in a husband. If he had any doubts at all, even the very remotest, “what if” then I wouldn’t have wanted him to marry me.
Now, I do understand the need for a prenup when there is a large fortune or estate involved or when there are greater interests than my own meager possessions and lifestyle to protect, but for most of us “normal” people I think even wanting a pre-nup speaks to the sincerity of the participants.
I don’t know, but that break up and the legal fallout was a whole lot worse than dissolving my marriage was. It was all handled through the family courts and with divorce lawyers just like a divorce would have been. I had never heard of doing such until I moved in with that guy. He was much better versed in contract and civil law than I, so knew how to play it I guess. The first (and legally binding) document we filed was titled “Domestic Partnership Agreement” and it defined the terms of the relationship very much like a marriage, and in fact we used it very much like a marriage license (to obtain spousal benefits for example) so maybe it was like a Civil Union? The courts seemed to think the contracts carried weight- enough that I spent a year in courtrooms explaining that yes, I gave him his stuff and no I didn’t take him off my insurance without notice and trivial things like that, as well as defending against his “spousal” support claims and other such nonsense that he probably couldn’t have done had we been going through an actual divorce. We did end up with legal joint custody of the dog the though which still makes me laugh. (He was a dead beat doggie-daddy though and never picked the dog up for his visitations. ;))
I honestly don’t know. I was young and naive and “in love” when I agreed to it and it ended up costing me dearly in the long run and left me with a bad taste for relationships in general for a long time and a lifetime distrust of anything resembling a pre nup.
If I hadn’t known mrAru as well as I did when we got married, I would have insisted on a prenup involving family heirlooms … when my grandmother died and we finally disbursed the contents of the houses, my uncles second wife demanded her share of family heirlooms which she promptly turned around and gave to her children by her first husband, who were not even adopted by my uncle, and who are not family. The children by his first wife were totally ignored by her, and recieved nothing except the items which were specifically given to them by name in the will.
I think the only situation where I would be willing to accept a pre-nup would be if it were designed to protect property that someone didn’t really own, but was more a steward of–like the heirlooms aruvqan mentioned. Likewise, if I (or my prospective spouse) had children and there were assets they wanted to make sure went to them, I could understand–I’d be totally willing to risk my own assets on love, but I don’t think I have the right to risk anything I really think of as belonging to someone else.
Faced with someone for whom the very idea of a prenup would be an absolute deal-breaker, I would give her my heartfelt thanks for the fair warning. Which is not to say that in any future LTR scenario I will demand or even consider a prenup, that’s a situational decision; but I give and expect respect for a person who prefers walking into situations bathed in the harsh light of reality rather than in a starry-eyed haze. And most realists I know are among "normal people ", FWIW.
I can say, definitely I’d expect this issue to be raised and be part of the deal if there’s stewardship of assets involved, e.g. children or other heirs from one or both sides of the blended family, or business interests in which there are outside partners or investors or tax liens involved. MitzeKatze, wow, that’s rough, BUT: as you describe it, it sounds like you were snookered into a **DPA **without provisions to protect you, but did ***not ***have a “prenup”. Very different things. Had you both simply married w/o a prenup, the same and even MORE legal troubles could have ensued. You were taken advantage of by an individual who knew the system better and wanted the benefit of creating legally binding and claimable obligations between the two of you w/o calling it “mariage” – vs. the more limited scope of claims a nonmarried, non DPA couple normally could have against each other (Though in fairness that last part depends on your State’s laws).
A marriage generally lasts a long time - one that lasts. Its ended by divorce or death. Over the course of 50 years people change. A lot can go wrong. I could get addicted to crystal meth. I could find God in a big and intrusive way - while you discover Dawkins. We could watch our children die of genetic diseases and have it tear us apart. I could, thirty years from now, meet my soulmate. You could get MS, end up needing constant care in a wheelchair, and I could discover I just can’t handle it. I could develop a mental illness that made me unstable, and just walk out the door one day.
I’ve been married fifteen years to a man I adore, who I believe adores me. We have two children. I don’t believe it will end until death separates us. I can’t guarantee it. (We do not have a pre-nup because we were dead broke when we married.)
I’ve seen some bad divorces. I went through one that wasn’t bad myself. Mostly because he was more eager to get out (and marry his girlfriend) than to fight over assets.
If we divorce and decide we don’t need the prenup and can just divide things out with arbitration, good for us. But if one of us turns nasty…
(You should however, have independent good lawyers when doing a pre-nup - you don’t want to end up where MitzeKatze did, where you are worse off with the pre-nup because it wasn’t set up fairly to begin with.)
Watched my brother in law marry a woman who had a huge debt load he knew nothing about. He then inherited money, she spent that, drove him into bankruptcy, divorced him, asked for (but didn’t get) support, and went after MY assets in the divorce (money we’d loaned him to keep his house because they were going into foreclosure - we had a promissory note)
Watched my uncle go on a golf trip. While he was gone his wife of fifteen years had a moving van brought to the front door and emptied the house (and bank accounts) of everything. Last I heard she was dealing drugs and being prosecuted for tax evasion. We all thought she was a lovely woman and they had a great marriage until the last two or three years, when the mask started to crack.
Watched a friend with a family trust marry a woman. She left the marriage about a million dollars richer after a mere six months without children. The terms of the trust have since been changed. Problem being, it wasn’t even his money - it was her share of the trust - it leaves less for his siblings.
Currently watching a friend of a friend decide how long she wants to write child support checks to her husband’s girlfriend’s baby. They’ve been married over ten years with kids of their own. She’s the breadwinner.
Watched an odd one in a group marriage. My friend (female) fell in love with another woman. They brought in a man. The other woman and the man had a child together. My friend was the child’s mother however, the one that stayed home with him and read to him and gave him baths. You see where this one is going right?
Not all these situations would be solved with pre-nups. But they are all examples of the reality that you can’t always trust the person you marry.
This sort of cuts both ways, though. If a marriage lasts a long time, conditions when it ends are likely to be vastly different than they were when the pre-nup was signed. Most folks have neither the patience nor the time to continually up-date their pre-nup, so what one tends to get is a plan for divorce that was fair and equitable given the circumstances in place on the day it was signed - which may be thirty years ago.
Which is why you wouldn’t want to be too specific (except in the case of those heirlooms, or assets existing already), but give guidelines on what is fair.
If circumstances change, and you trust me to do the right thing and I trust you to do the right thing, the prenup can be supplanted by mutual agreement. If our original agreement was ‘no spousal support’ but you became disabled during our 30 year marriage, we might mutually agree that spousal support is fair and override the pre-nup.
No doubt; the issue is whether you will be less screwed with one drafted many years ago, under different circumstances.
Thinking about my own situation, if we had a pre-nup drafted right before we were married my wife would be in serious trouble (assuming it was enforced). Then, I was dependant on her financially; now, she is dependant on me (though we never thought of it in those terms). Terms drafted then would not be appropriate now, and I seriously doubt a court would allow them to be enforced unfairly in my favour.
Another factor to consider is how enforceable these things really are. I never did any family law, but here in Canada at least my impression is that the Courts tend to disfavour any result that radically departs from what you would get anyway by virtue of family law legislation in terms of basic items like division of family property or support.
To my mind, pre-nups are only really useful to protect “legacy” items, such as property, heirlooms, or family trust money. The average person doesn’t have much of these anyway.
I’m actually not huge on the pre-nup during the potential divorce phase - because circumstances do change. I think working it through pre-marriage is a good pre-marriage discussion. Too many people marry and don’t want to face “what if this doesn’t work out.”
And people make a lot of assumptions about what will happen if they divorce. If they have someone before they marry correct some of those assumptions, maybe they’ll be less (or more) willing to cut the ties later.
So, I guess I’m more of a fan of the pre-nup process than the legal document called a pre-nup.
I could accept it if there were family heirlooms or children from previous relationships involved. For normal assets, I wouldn’t bother getting married if it required a pre-nup. If we don’t really want to combine our assets and lives, why get married at all?
To me, a prenup = “I don’t think this marriage will work”
To me, marriage = forever
You have a will, because death WILL happen, there’s no way around this.
Now I realize I’m 45 and from a different generation. I have known people who are younger who don’t see marriage as forever. I acutally know three people, (2 men and 1 woman) who told me “Well if the marriage doens’t work, I’ll just get a divorce”
Then I ask, “Then why bother getting married?”
And then they list several reason, religion, so their kids will be legit, to see what it’s like.
We all have heard of books on “Starter marriages” etc.
I can see a prenup in a “second marriage,” with children and such. But even then you can protect the kids through other means.
So really I think you have to define “marriage.” Do you see it in terms of forever? Or just a another legal ceremony.
I’ve been thinking about the above (and a little bit about attitudes like Markxxx’s). My thought is a “phased out” prenup of some kind might be appropriate, where it goes away in some fashion after 5 or 10 years (perhaps even a certain percentage each year, that way a disgruntled spouse in year 8 won’t feel the need to “hold out” for two more years before filing for divorce). Thoughts?
