I don’t know what a pre-nup looks like, nor do I really have any assets worth protecting. But the idea of having a pre-nup doesn’t particularly bother me.
At this point in my life, I don’t think there’s anything wrong with being prepared for the possibility that things won’t work out down the line. I don’t see it as being (much) different than carrying medical insurance even though you’re in the best physical shape of your life. Shit happens. We don’t always see it coming, and it isn’t always someone’s fault. Is it really so terrible to have contingencies in place, and hope you never need them?
It’s different for everyone, but… I think often people say “no prenup” for emotional reasons, but are ill informed about the legal and financial consequences of marriage. Different states have different rules about what happens should a marriage break up. People should learn exactly what the consequences would be in the event of a break up, even if they are sure it will never happen to them. If they are comfortable with whatever the laws are in any state they may ever live in together, then fine.
There are valid points of view on all sides, but I often think people have a knee-jerk reaction instead of really thinking it through.
p.s. – One might argue that the “no prenup” people are essentially saying that they want the state to force a certain kind of settlement upon them, rather than relying on the good intentions of their partner.
I’m a lawyer, so when I think about marriage, I automatically think about pre-nup, starry eyed or no. It just makes good business sense. The future is never guranteed, so you should do what you can to protect yourself, just in case. Why put yourself at risk if you don’t have to?
I think anyone who refuses to marry if their future spouse asks for a pre-nup should be regarded with a lot more suspicion than the future spouse asking for one.
I had a hard time following MitzeKatze. What was the point in entering into all those legal contracts but not actually get married? I can understand entering into a domestic partnership if you’re a same sex couple or can’t otherwise be legally married, but a heterosexual couple not otherwise being kept from marrying? Why didn’t you guys just get hitched if you wanted to become contractually bound? I don’t get it.
This is exactly how I used to think. Now, one failed marriage later, I would not enter into another marriage (or even co-habitation) without some kind of agreement.
I’ve been seeing a lovely, lovely man since last May. We have discussed taking things to the next stage - moving in together.
When my marriage disintegrated due to my husband’s alcoholism, I lost a lot. But I did keep a lovely three bedroomed flat in the centre of Edinburgh. Mortgaged up to half its value, granted, but it’s mine.
My fella lives in a rented room, having lost his property due to a past gambling addiction.
If we get married, would I expect it to last forever? Yes.
If we get married, would I want to protect my property in advance, just in case? Oh yes.
Back when I first got married (almost 17 years ago), a pre-nup would’ve had me feeling about the same as Markxxx. But now that I’m older and hopefully wiser, I think they’re just practical. And this comes from someone who doesn’t have much.
The idea was his and was almost exactly as what you say about pre-nups. It was supposed to make good business sense, protect us from the unpredictable future and we (or I guess I) planned to be married later down the line. This was very much like a pre-nup as it defined exactly what each of would get and wouldn’t get etc. in the event of a break up and it was intended to be sort of a “practice marriage” without the marriage part. It was explained to me that it would be easier to dissolve than a marriage (HA!) and that it would entitle us to some benefits of marriage without the full commitment. As I said I was very naive and just went along with it because I was “in love”.
I agree with the poster who said why get married if you aren’t sure or don’t want to combine assets. If I wanted to keep my property, assets, etc. separate from husband or if he wanted to keep it separate, we could just live together without the license.
I believe in knowing the laws (especially now!) and I believe in going into it with your eyes wide open and knowing exactly what could happen in the future and what the downside might be. But I do not believe in planning the divorce before planning the wedding.
Conversely I am 48 (even educated partly in Catholic schools, i.e. official line “marriage = forever”) and yet I have absolutely no problem with prenups and absolutely do NOT see it as planning to fail, nor do quite a few people I know even older than myself. Very early I was witnessing example after example that (a) it’s not necessarily forever and that (b) human beings who were perfectly OK can take a turn for the worse, characterwise, and not only become intolerable as continued partners but become petty and vindictive about it.
So, to me and millions of others it’s NOT “planning the divorce before planning the wedding”, it’s NOT “I think this marriage will not work”. It’s taking steps to mitigate the potential “downside”.
I wouldn’t have any problem signing one, personally. But part of the reason for that is that there is a family business involved and I would (will) want my future spouse to sign one to protect that. At the moment I’m going through a divorce with someone I thought I would spend the rest of my life with, one of the things I’m glad about right now, is that I have no stake in the family business at all. Well, I work there, and will probably own it someday, but right now, as far as any legal paperwork is concerned, I’m just an employee. My divorce is VERY amicable and I don’t think she would try and get anything from the business if I did own part of it. It made me realize that marriage is supposed to be forever, but shit happens and it doesn’t always work out that way. Someday when I get married again, I’m planning to have a prenup with the assumption that I may one day own the family business and I would hate to lose it because, well, shit happened.
And on the other end, if my future marriage wouldn’t work out, I wouldn’t feel right taking half of the stuff that is basically hers as opposed to ours (inheritance, maybe she’ll be given part of a family business etc…).
Nope, a prenup wouldn’t be a problem for me.
I should mention that I really only understand a prenup to be “a thing that protects your money in the event of a divorce.” My knowledge of it doesn’t really go much deeper then that, so I may be misunderstanding other ramifications.
Sorry, but y’know, I still have to say the experience you describe is NOT an indictment of actual pre-nups… because it WASN’T a “prenup”, and you were misled to believe the arrangement you entered was something it was not because you were “very naive and just went along with it because [you were] ‘in love’”. From the info you provide it sounds like the person in question would have sought a way to shaft you no matter what the legal arrangement, and he maneouvered you into the one that would make it easier …for HIM to get out while still imposing upon you. What a louse, really…
I agree. I carry disability insurance but I don’t think of that as planning to lose a limb or two, I think of it as being prepared in case something happens that I can’t control. My fiance and I are absolutely in agreement that we will have a prenup because, even though we plan to be together until we die, if we do get to a point where our marriage ends we want to know that we decided what was fair before we got to that point.
I would also like to say that we have seen many threads here on the dope about people who found out one day that their spouse was leaving with no warning. They just came home and all of the sudden their spouse fell in love with someone else or was incredibly afraid of them or whatever. These people didn’t enter into a relationship with the intention of leaving but they would have been well served by having the legal aspects of everything set up before they were thrust into the emotional wreck that is a divorce proceeding.
But a civil union is roughly the same thing as marriage, legally. I guess that’s what I don’t get. If you’re not married, a break up won’t affect your assets, unless you buy a house together or something. If you form a civil union, then it will. Basically, the means by which you were “protecting yourself” in the event of a break up are the very reason you’d need protection in the first place. That shouldn’t be the reason for being against a pre-nup, because the marriage itself is what you’d need protection from in the event of a break-up. You’re not creating the need for protection by way of the pre-nup itself, which is what it sounds like happened to you in your previous relationship.
This I strongly disagree with. You’re not “planning the divorce” by getting a pre-nup, you’re merely protecting yourself “just in case.” Like one poster said, it’s no different from health insurance. No one is planning to get a deadly disease that could result in financial ruin and certainly no one wants to ever be in such a position. We get the insurance anyway, however, to protect ourselves in the event of such a horrific possibility.
To my mind, the question (stripped of its emotive content) is this: does it make better sense to privately plan in advance the consequences of an event that may happen years down the road, or to rely on the statutory scheme in place to deal with that event (recognizing that your pre-nup may not be enforcible if it varies too much from the statutory scheme)?
In many cases, with ordinary folks, the answer is usually going to be “no”. The reason is twofold: (1) that you cannot predict in advance what the conditions will be like years down the road; and (2) in most jurisdictions, the statutory scheme (support, equalization, etc.) is actually a fairly reasonable allocation of risks; there is not much extra benefit and protection to be gained in privately drafting up a different allocation.
Lets get one myth out of the way: having a pre-nup will not reduce the potential for litigation. The partner that finds that the pre-judged allocation of risks in the pre-nup varies from that they would get under the state scheme has an obvious incentive to litigate; the fact that the courts will in many jurisdictions look unfavourably on such agreements practically guarantees it. A woman with three kids and a 30 year marriage to a banker in which she gave up her career to raise a family is not going to to be kicked to the curb with $30,000, no matter what the pre-nup she signed 30 years ago when they were both students living in a basement apartment might say - if she litigates, in most jurisdictions.
That’s why I say that a private allocation only really makes sense where there is some assets you want to protect that are not accounted for in the statutory scheme. A classic example is the family cottage. You may have grown up there, and want your kids to grow up there …
If a pre-nup limits my potential marriage prospects then so be it. Actually I don’t think I would be attracted to a woman who was opposed to one anyway. Hopefully if I meet a woman that I love enough to consider marrying she will be in roughly the same stage in life as me such as: kids at college or nearing the time when they are on their own, having their own career and house, financially independent so that she would feel compelled to protect her assets.
I believe in love and romance but I also believe in being realistic. I don’t see why a pre-nup has to be considered a downer or boiled down to a business decision. Hell, if anything (as a recovering alcoholic) I would wonder about the sanity of my potential mate if she didn’t insist on one!
If the marriage is a happy one then no harm done. If I die before her she gets half of my assets and my daughter gets the other half. Simple right?
I think this is going to vary with age. If my husband had suggested a pre-nup when we got married, young and living in a one-bedroom apartment, it would’ve been crazy and insulting, because it’s not like we had any assets to protect.
I can definitely see it more for people who are older or with children from a previous relationship.
The Courts require that at the time of the making of the pre-nup, both sides knew the facts, knew the law (usually requiring independant legal advice), understood the deal they were making, were not under duress, and that the deal was objectively a fair deal when it was made. Let’s call this a properly made pre-nup.
An objectively fair deal does not necessarily mean that the deal must stay somewhat close to what would result from family law legislation sans a pre-nup.
Pre-nup terms concerning custody, access and child support are not worth the paper they are printed on. When there is a significant difference between a pre-nup and family law legislation, the Courts almost always apply the legislation rather than uphold the pre-nup. The reason for this is the Courts try to act in the best interests of the child, regardless of what the parents might have cooked up between themselves. For example, in some cultures the father gets custody. When faced with a pre-nup of this type, the Courts simply look at what is best for the child given all the circumstances, rather than necessarily following the pre-nup.
Courts usually uphold pre-nup terms concerning spousal support and property equalization and/or division, provided that the pre-nup was properly made. This is where terms in a pre-nup might greatly differ from what would otherwise appply through family law legislation.
Consider Ontario’s equalization legislation as it applies to matrimonial homes. The general rule is that if your net worth grows during the marriage, you split it with your spouse, and your spouse does the same towards you, and neither of you get a share of the other’s pre-marital net worth. As far as this goes, it seems reasonable enough, but the legislation has carved out an exception to this general rule that says that if a person owns a home prior to marriage that the newlyweds then move into, the pre-marital equity in that home is counted as if it were earned during the marriage, and is split with the spouse. Here’s an example of how this works. A bachelor owns a house worth $100,000, and has no other assets or debts. He marries a woman who has no assets or debts, and they move into his house. They later separate. Under the legislation, he keeps the house, but has to give her a $50,000 equalization payment. She puts the money in the bank, and marries another fellow and moves into his house which also has an equity of $100,000. They later separate. She does not have to split the $50,000 she received from her first spouse, and she gets another $50,000 from her second spouse as an equalization of his assets that include his house. A lot of folks would think that this is unfair, and the Court would probably agree, but the test for whether the equalization law should not be applied is unconscionability, not fairness, so odds are the woman can keep on increasing her net worth at the expense of her chain of husbands’ pre-marital assets. A pre-nup that says only marital net worth and not pre-marital net worth shall be divided would vary greatly from the legislative scheme, but usually would be upheld by the Courts, because the pre-nup terms were objectively fair, regardless of it being greatly different from the legislation’s equalization scheme.
With respect to spousal support, the legislation does not necessarily fit well with folks who are both self-supporting with high incomes, who during the marriage kept separate income and expense regimes, and who did not make any career sacrifices to have kids. For example, if a lawyer and a doctor marry each other, keep separate bank accounts, share all the common expenses, and separate before they have kids, such that the lawyer has a take-home income of $150,000 per year and the doctor has a take-home income of $300,000 per year when they separate at age 45 after 15 years of marriage, a reasonable amount for spousal support per the Spousal Support Guidelines would be about $3,300 per month. Now some folks might think it unfair for a lawyer taking home $150,000 per year to get a few grand a month in spousal support, particularly since the lawyer had never been supported by the doctor during the marriage, and had never had his career impinged in any way by the marriage. A pre-nup setting out that neither would pay the other spousal support would vary greatly from what the result would be under the law, but most likely would still be upheld by the Courts.
What it comes down to is that marriage is a contract, and the terms of the contract are set out in the body of family law. Some of the terms can be changed by the parties through a pre-nup.
I think that people should understand what they are getting into when they sign the most important contract of their lives. Whether the contract terms are acceptable as the government lays them out in the body of family law, or the terms are modified through a pre-nup, the simple fact remains that there are terms that will apply, so the parties would be best to look before they leap into the deal.
Disclaimer: the above deals with Ontario law, which is not the same as laws elsewhere.
My wife and I don’t have one because we didn’t own anything of value when we got married and didn’t have any kids.
I think that a premarital agreement becomes more important when it is a second marriage and there are children from previous marriages involved. A premarital agreement can help clarify how assets are going to be divided in the event of divorce or how the estate of either party will be arranged. A premarital agreement can be used to waive certain inheritance rights that spouses have. Under Virginia law, the surviving spouse can take one third of the estate if there are children, or one half if there are not. I can see a situation where neither party would to leave a sizable portion of there estate to their spouse.
Another reason to consider a pre-nup is the effects of mobility.
The body of family law differs by jurisdiction. The law in one province or state where a couple marry may not be the same as the law in the province or state where they eventually separate.
If a couple figures that the law in their jurisdiciton fits their anticipated needs, and therefore they do not get a pre-nup, one or the other of them might be in for a nasty surprise if they separate while living in another jurisdiction only to find that the law there is quite different.
Does that mean that if the deal is not objectively fair when the pre-nup is applied, the courts will uphold it where it was objectively fair when made?
My impression is that a person who considered themselves hard done by in this respect could, in many cases, do better through litigation. Though this isn’t my area.
I’d agree, folks should know their options either way. My point is that in the majority of cases, ordinary people do not absolutely require pre-nups to be “safe”, because the family law legislation actually acts as a reasonable allocation of risks absent one owning property with value going into the marriage. Sure, if there is some special circumstance or asset one wants to protect, it’s a good idea.
Really, in a pre-nup one is trying to allocate risks for a future contingency. This is of course totally reasonable. What is less obvious is that you, as a couple, together with your lawyers, will do a better job of this than the legislature - remembering that you cannot know for sure which of you will get the dream job, which will get a serious illness, whether you will have kids, etc.
