Pre-Nups

In My Humble Opinion
81

Could be. But remember there are three sides to every story, and that is never more apparent than in a messy divorce. Every non-amicably divorced person I know will tell you (sometimes without prompting;)) that they are the one who was screwed over in the divorce. My husband’s ex-wife left all the possessions with him, took the children and moved out of state while he was at work. He came home to find the empty house and a note. He repeatedly tried to give her back all of the marital property (furniture, electronics etc.). He did not want it and it and repeatedly tried to return it to or get her to pick it up. He was active duty military at the time and they lived in base housing so the actual house was not involved. The day he discovered his wife was gone he set up a voluntary allotment transferring more than half his pay and allowances to her as spousal/child support until it could be set up through the courts (as an aside spousal support was eliminated and child support was granted at a much lower rate than he had voluntarily given her until he got full custody of the kids a few years later). BUT to hear her tell it, she was completely screwed over in the divorce and he took her for everything she was worth and ruined her entire life to this day (now 13 years later). My point being that such sob stories (mine included!) should always be taken with a grain of salt and remember that much of it is going to be a matter of perception.

That sucks. It is always hard and sad, and especially tragic for the children involved, but do you think it would have been any better if they had a pre-nup?
If so, then how? If there had been a pre-nup stating Mom gets XXX and Dad gets to keep XXX in the event of divorce (or vice versa) what would have kept one of them from disputing it or trying to change the terms (claiming unfairness or change of circumstance or what have you) or fighting over the areas not covered by the pre-nup. If a divorce is going to be contentious and litigious, then having a pre-nup just gives more points to argue about and more cause for courtroom involvement.

82

Having done it twice, if you are making a giant leap of faith when you marry, good luck to you. I made a giant leap of faith the first time, and it didn’t work so well.

The second time I took a small step of faith.

83

Preposterous. I’m not planning to smash my car or get testicular cancer but I still buy auto and health insurance. Planning for unpleasent events does not make them any more likely to happen.

Self interest trumps trust and commitment. Trust only exists for so long as the other party demonstrates themself to be trustworthy. And people have not obligation to commit themselves to a partnership with someone untrustworthy.

In other words, sure, you aren’t planning on getting divorced now because you are in love. But if circumstances change, do you still think the other party will be agreeable?

Besides, I’m just going to hide all my assets anyway.

84

Okay so to you a pre-nup is on par with insurance? To me THAT is preposterous. Car accidents, illnesses, and natural disasters are all things that cannot be predicted and are often beyond our control. Divorce is not beyond the control of the participants, and can be predicted. Having, signing, or requiring a pre-nup is predicting a divorce (whether that prediction comes true or not). So really, to my understanding of it, and my opinion it would be more analogous to purchasing that health insurance policy while withholding the information that you already have testicular cancer, or buying a huge life insurance policy with the intentions of committing murder (or suicide) or deliberately crashing your car (burning down your house, etc,) for the insurance money. No amount of saying otherwise can negate the fact that a pre-nup is a plan for divorce. Even if you say you are not considering divorce, and it is “just in case”, it is still a plan for divorce. I couldn’t marry someone who was planning how to divorce me, it just doesn’t make good “business sense”.

Of course people have no obligation to commit themselves to a partnership with someone untrustworthy. If you don’t trust someone or if you believe there is the remotest chance that you will not trust them sometime in the future, then you shouldn’t marry them. You can have a relationship without being married. Hell, you can have a “marriage” without being married. And if you want to remain separate, keep your assets, finance, and property separate you can be roommates. It accomplishes the exact same thing as a pre-nup without all that messy courtroom and lawyer drama when you are ready to move on.

If circumstances change, do you think the other party is going to be agreeable to the terms of the pre-nup? How many divorces are drawn out and argued with pre-nups challenged, overturned or deemed unfair to one party or the other?

I think a better solution would be not to get married in the first place. If you have trust issues- and you do if you believe that you may one day no longer trust the one you are now in love with- being roommates or lovers without the legally binding commitment would probably suit your needs much better.

85

"The second time I took a small step of faith. "

No you didn’t. You took exactly the same leap of faith that everyone else did and does regularly. You don’t know what the future holds, or what fates await you or your spouse. Any more than you did the first time.

When you agree to marry someone, ‘till death do us part’, you are making a huge leap of faith. No one knows who they’ll be in 20, 30, 40 yrs. No one. You have to trust you know them well enough to believe they will still be a good person that you’ll still want to be with.

A prenup is like, I trust you but… Doesn’t cut it for me, you either have faith in me or you don’t. You don’t get to qualify it. I trust you to bear and raise my children but not with my real estate?

(Besides isn’t every second marriage a triumph of hope over experience?)

86

If something were to happen to my husband, I’m one of those who would tell a guy who insisted on a pre-nup to go fuck himself. It’s not that I’m against them in theory, it’s just that insisting on one seems like a really clear indicator that we have vastly different priorities in life. I understand wanting to protect your child’s inheritance… but I have no interest in being with someone with kids. I also understand wanting to protect wealth… but having significant wealth means that either we grew up very differently or you are vastly more driven and career-oriented than me and we’re probably not compatible enough to be happy together in the long term. But if we’re on a similar financial footing and you insist on having a pre-nup, it means that you’re worried about protecting your stuff, which is ridiculous because it’s not like your stuff is so fabulous that I’d want it in the first place.

That last, I think, is what strikes me as so ridiculous about pre-nups between people who aren’t wealthy–most middle class people don’t really have so many assets that they’re worth fighting over. If DoctorJ had suggested I sign a pre-nup, I’d have ruptured something laughing at him. It’s not like at the time he had anything I would want. Hell, after 7 years and his income going up by a factor of 10, we still don’t really have much of anything I’d want bad enough to argue about. Well, let me rephrase that. We haven’t acquired anything much jointly I’d want bad enough to argue about. There are things that were mine before we married that I’d absolutely go to the mat over, but they’re things he would have no interest in–my granny’s music box and such.

87

Snip.

I don’t think you get it. In a lot of states the default is a simple 50/50 split regardless of who brought in what assets. Beyond that, if children are involved it can get really harsh on one partner or the other. I work with a few guys who live together in a tiny efficiency so that they can pay out their child support and alimony to their wives. Their spouses have the home, car, most of the stuff, and nearly all of their paychecks. A pre nup won’t void the need to care for the children of course, but it WOULD have protected them from losing all their marital assets. It could have specified that the home had to be sold, or that the custodial parent assumes the mortgage solely if they wish to keep the house.

It also can specify that inherited items, family heirlooms, or expensive property like paid off vehicles or high end electronics, computers etc remain the property of the person who brought them in the case of a divorce. It is more about Assuring fairness, then leaving it all up to a judge and whoever has the better attorney. In Florida, if you are male and have children, chances are very good that you will lose everything to your spouse without some sort of pre-nup.

It isn’t about not trusting the other partner; it is a simple assurance that if things go pear shaped that everyone leaves on equal footing.

Suppose for example, Nashiitashii cheats on me and we file for divorce. We have a child together at that time. Here in Florida, she will probably get everything despite her infidelity. It is a “no-fault” state, and prefers to keep children with mothers. Without a prenup, I’d lose everything that I’d worked for in the home, cars, property etc… With one, the home would be sold, I’d get half and could place that money in a trust to help pay for the child etc…

88

That is not correct. Just as there is a body of law that deals with married people who separate, there is a body of law that deals with non-married people who separate (for example, here in Ontario, have a boo at remedial constructive trust decisions in the law of equity, and the custody, access, child support and spousal support provisions in the legislation). Whether a couple marries or does not marry, a pre-nup is equally useful is deciding whether to use the law’s terms or the couple’s terms upon separation.

89

Nice story, but it doesn’t add up.

"Without a prenup, I’d lose everything that I’d worked for in the home, cars, property etc… ", doesn’t quite jive with, “the default is a simple 50/50 split”.

And this, “With one, the home would be sold, I’d get half and could place that money in a trust to help pay for the child etc.” Bolding mine. Seems to imply that your perceived share of wealth is more important to you than where your exwife, [now single Mom], ends up living with your child.

When the house remains unsold or paid out for, where I live, it’s because a) they’d lose money if they sold in a bad market, b) they both agree it’s better for the kids to stay put, while they adjust to the divorce, c) don’t want to force wife and children into ‘lesser’ housing conditions.

So you’re trying to protect yourself from the court awarded 50/50 split, by your own admission.

Ick. Again, no thanks.

90

You know my ex-husband then?

And no, the second marriage was not a triumph of hope over experience. It was a triumph of the legal system that gives certain rights to married couples over experience. Had we not needed to be married to get the legal rights of marriage, we wouldn’t have bothered.

91

What legal rights do married couples have that commonlaw couples do not?

I’m just curious? Where I live it’s the same for both, married or commonlaw.

92

Note on use of terminology: in the USA, IIRC many (most?) jurisdictions no longer recognize officially, by that name, something called “common law” unions (or only those entered in before a certain time). Nowadays depending on the specific state there may be Domestic Partnership laws, Civil Union laws, and/or laws (both statute and caselaw) that provide protections for long-term cohabitants in the absence of an actual legal registration of the relationship; but while in some states there is somewhere in the spectrum an "everything but the word ‘marriage’ " status, in many others it falls variously short – and most notably, short of an actual recognized marriage, the status may not port from one state to the next or to the Federal sphere .

93

I think this is an important point. Any marriage scenario where a pre-nup would be relevant is also probably one where the marriage is more succeptable to failing. For example, any relationship where there is a substatial disparty in culture, wealth or education level.

Do you have a house?

The problem with your sort of thinking is it is dependent on what you think “you want” or “you don’t want” right now and you are assuming he is thinking the same way about those items.

94

Just to be clear, all those things - Domestic Partnership, Civil Union, etc require an affirmative act. You cannot gain any benefits of marriage in most states simply by living as married. Most states have eliminated “commonlaw” approach to marriages or are phasing them out. I think about 9 states have some form at the moment.

Two peeople living as married are NOT legal next of kin and, for example, may not even be permitted to visit their ill partner in the hospital, because they are not legally family.

In case you are wondering, this is one reason why gay marriage is considered “a big deal.”

95

(Note: the following applies to where elbows lives, in Ontario, Canada. Your laws will differ.)

If by saying common law you mean the vanishingly small number of people who have traditionally recognized marriages according to their culture’s and community’s customs while at the same time living in such remote areas that church/state marriage is not practicable, then yes, state/church marriage and common law marriage are treated as one and the same. There are a handful of folks up in the far north that fit in this category, but that’s about it.

If by saying common law you mean conjugal relationships in which the spouses are not married but live where marriage is available for most folks, then they are not necessarily treated the same as married couples.

For where you live, here is a potted summary (for folks who do not live where elbows lives, ignore the following):

Custody
Married spouses and non-married spouses are treated the same.

Access
Married spouses and non-married spouses are treated the same.

Child Support
Married spouses and non-married spouses are treated the same.

Spousal Support
Married spouses are treated the same as non-married spouses who lived together three or more years or who lived together and were raising a child.

Property
Married spouses are entitled to a division of net family property including the matrimonal home even if one spouse owned it solely prior to the marriage, and regardless of ownership, spouses have rights to remain in the matrimonial home. Non-married spouses do not have an automatic right to a share of each others’ property, but still have rights to a share in equity (this means that non-married spouses who each had their own careers, did not have kid, and were together for only a few years, would probably not get any share of each others’ property, whereas if non-married spouses were together for many years and had kids for which one of them stopped working outside of the home, there probably would be a division of property).

Canada Pension Plan
There is no longer a significant difference between how married spouses and non-married spouses are treated, and pre-nups are not binding on the CPP anyway.

Substitute Decisions
Due to relatively recent changes in the law, married and non-married spouses now have the same rights.

Testate Succession
If they wish, married spouses can op-out of the will within six months of their spouses death, and instead elect to take what they would have received had they separated immediately prior to their spouse’s death. Non-married spouses do not have this option.

Intestate Succession
If there are no children, a married spouse gets everything. If there are children, a married spouse gets a preferrential share. A non-married spouse gets nothing.

Dependant’s Relief
There is no difference between how married spouses and non-married spouses are treated if they are dependant on an estate.

96

You never really know your wife until you get divorced.

97

Well, in all honesty, what on earth would he want with a music box that belonged to someone who died 10 years before he met me? Or with a sewing machine he doesn’t know how to use? Very little we own has any real monetary value. There’s the house and cars, and that’s pretty well it for stuff that’s worth more than it would cost to have lawyers fight over it. And he’s more than welcome to the house and his car–I’d immediately move several hours closer to my family and I’ve never thought much of his car. So what do we have that would be worth drafting a pre-nup over?

98

Ok, let’s say you fancy a divorce, but being a typical woman you decide you’re not going to tell him for a year while you arrange everything behind his back, right up to and including finding a new partner.

The day before you tell him, you win the lottery. Now what are you going to do?

99

The hell, dude?

100

For someone who lives at home and has admitted to having little life experience and even less ambition, you sure do have strong opinions.

This made me choke on my cough drop :slight_smile:

From my experience, lots of people really SHOULD have prenups that don’t get them. Both of my parents are highly paid professionals, and had no need for one when they married, as their incomes were bound to be very close. My father had little family money, my mother more, but it was balanced out by the fact my dad had been working for 10 years and my mother was just starting, as per their age difference.

However, many of their colleagues’ marriages consist of just one highly paid specialist and the other, a middle-income worker, or simply a SAHM/“jewlery maker”/ yoga instructor. They thought it was forever - and many are going through messy divorces as a result of not having a prenup or the like. The marriages that consist of physician/pharmacist or physician/professor or physician/engineer or physician/small business owner are the marriages that work out - and seemingly, don’t need a prenup.

So basically, if you aren’t going to have the same incomes, if one of you may stay at home with the kids, or has intellectual property/heirlooms/family trust, then you should have a prenup. But if you’re about the same financially and are set to both make roughly the same as well, well then there’s no reason to have one. Similarly, if your education or field of work is roughly the same, your odds increase.

Also, along the lines of “you should have a prenup” you should also not live together without being married. It’s okay to do so if you’re clearly both on the same page about marriage (and don’t have assets). My uncle lived with his girlfriend for 30 years, and she led a nice life - leased luxury cars, a beachfront home, new clothes, shoes and toys at her beck and call. Totally uneducated, she worked as a secretary. But it all ended when he told her to move out. They had no kids, she came into the relationship with nothing, she never cooked or cleaned a day they were together. Her free ride was over, but she wasn’t going to go away without kicking and screaming. She actually got a hack lawyer (this is in Florida, for those following along) to draw up documents with “proof” they were married. It was ugly - she had to be escorted out by the sheriff with her clothes. Sorry people, common law marriage is a myth at best.