I’ve said it before, and I’ll say it again. I’m against them for the following reasons:
If you want me to swear forever to you, bear and raise your children, stand by you if you become disabled, perhaps even disconnect you, to die with dignity, when the time arrives, if you trust me to undertake each of those things but are worried about your money and summer house, I’m going to have a big problem with that.
Now if you have valuable family jewels, estates, trust funds, vast art collections, that’d be a different kettle of fish, as I would view those as assets held in stewardship. As long as a generous and secured future was assured to me, I suspect I could be persuaded.
In my eyes, a partnership is equally sharing in whatever fortunes, good or bad, the future holds. “Yeah but not my money.”, really isn’t going to do it for me, I’m afraid. I couldn’t marry someone I didn’t feel fully trusted me, as I would them.
There’s no PC way to say this - but a huge part of most marriages is about a stable family environment for kids. Supposing man and woman are both precisely the same age, if they are both fifty in the most cynical sense the man can start again. The woman can’t.
Therefore if the man wants the right to “start again” he is not very wise in getting married as he will not only have child support to deal with but also alimony (if applicable) and resource-giving to his ex wife; on the other hand the woman basicaly can’t start again, so she is better off having a contract whereby the ex husband gives her stuff if the marriage is ended.
Please note the above is not supposed to be a cynical view on all or most relationships. I am speaking of the outliers which is where this matters.
You have set out terms that you are against. A prenup could be made without any of those terms, and instead be made with terms quite the opposite of those which you oppose.
A prenup simply sets the terms. For example, it might equalize property, or it might prevent such equalization, or it might set out terms concerning particular types of property or property obtained in certain ways. It might set out spousal support, or it might prevent spousal support, or it might set out conditions concerning entitlement or duration. All a prenup does is set out the terms of separation rather than using the default terms of the body of family law. Is it up to the parties to determine those terms, and provided those terms are within acceptable policy, their terms do not have to go one way or the other.
I suggest that rather than being against prenups due to some prenups having terms that one does not like, one should instead consider whether one is against the default terms that would apply should there be no prenup, and then draft a prenup to address those unacceptable terms.
If you don’t know the terms, a prenup is a chance to either learn them or spell them out.
My favorite use of prenups is not during a divorce, but as a pre-marriage disclosure of assets and liabilities. I know a few people who married and then discovered they had married someone with tens of thousands in credit card debt AND tens of thousands in student loan debt. For young couples - frankly for any couple, its usually the liabilities, not the assets that are going to bite you in the ass as a married couple. And once you are married and start mixing your finances, even if “her liabilities stay hers” the fact that she is paying them means that as a couple you aren’t using “your” money for the mutual good. In the interest of good marital finances, you might pay down the debt faster, and if the marriage doesn’t last, you might want the disbursement of marital assets to reflect your contribution to paying down pre-existing debt.
So what you’re saying is that a woman isn’t capable of taking care of herself without a man, needs a man’s money to survive and if the marriage ends would end up penniless since the person with the penis supported her and the kids their entire married life and will have to do so in the future. Gotcha.
No. For a couple starting out with nothing what a prenup is saying is that we don’t know what will happen in the future but what we do know is that if it doesn’t work out, we should be able to make a clean break with you keeping what you earned and worked for and I keep what I earned and worked for. If you run up tens of thousands of credit card debt baby, that’s yours. If I put a third of what I earn in my retirement account, you’re not getting it. I am not going to support you because you’re not my child. If I paid for your clothing and vacations and the roof over your head in exchange for your raising our children until they start school, I owe you that part of my retirement and savings and that is it. If you decided to buy prada shoes or a speed boat on your credit card, good luck with that. Not my problem. If you want to stay home one second after the kids start school you’d better figure out a way to take care of yourself if it doesn’t work out because it won’t be me paying your rent or grocery bills.
See, this is where I think the philosophical difference is. To me (and my husband) if one of us earns it while we are married, it’s both of ours. If one person stays home and the other works, that’s a decision we made. If one of us buys something significant, that’s a decision we made. If some of the money the family earned is going into a retirement account, that’s a decision we made together. If we got to a point where we couldn’t make those decisions together, that’s when we would get divorced, long before assets earned or liabilities created without consensus had had time to accumulate.
I am generally against them. UNLESS there are children from a previous marriage, or is heir to some large family fortune/trust. In such a case, that person has financial obligations to people other than their new spouse, and it is perfectly reasonable to spell them out in an agreement beforehand.
Otherwise—no. You’re signing up for the whole deal. Marriage is a throw-yourself-into-it-fully kind of thing. If you can’t do that, don’t get married.
I’m confused about the ‘starting again’ thing for men and women. Perhaps age 50 was just a really bad age to use as an example, 'cause I imagine very, very few women of 50 want to ‘start again’ regarding kids, and any guy who wants to have kids again at 50 is just asking for it. Not to mention he has to pay child support for kids born before that regardless of marital status.
Actually, 50 is a great age to date for a woman. The men you date typically have kids that are already grown, your own kids are probably grown, financially there are typically fewer burdens than with kids, and if you don’t try to date teenagers, the guys you run into are ALSO pretty well set where they’re going to be financially, so it’s not typically a matter of one supporting the other. Most people kinda ‘know who they are’ by 50, so there are fewer games and more options. All in all, a good time to date!
Guys have it harder, of course, if they are trying to date younger and don’t have the cash to attract them.
I’m not for or against a prenup, but I do think that both people should discuss the financial and legal aspects of marriage before making it final. (Of course along with issues like family, living arrangements, etc.). They might decide when discussing these things that a prenup would be a good idea (or not). As long as they go into it making a conscious decision rather than unknowingly accepting whatever the default legalese would be.
A more accurate way of putting it would be that in general, upon separation after raising a family, the odds are that without property equalization and spousal support, the primary care giver (usually the woman) would never catch up to the financial base and ongoing income of the other spouse (usually the man), despite the two of them having supposedly entered into a marriage based on share and share alike through better or worse.
Primary caregivers often take a major hit in their income earning careers to spend their time caregiving, while at the same time they help free up time for their spouse to pursue income, for which the courts attempt to compensate by way of support. Obviously every case is different (such as your’s), but the overall pattern is clear.
A few decades ago, almost all primary caregivers were women. More recently, both spouses often share parenting tasks, however, even when parenting is shared, women tend to carry more of the load, and when parenting is not shared, most of the time it is the woman who fully or partially drops out of the workforce to raise the children.
This disproportionate division of child rearing responsibilities often leads to the problem of women not rising through the ranks in employment to the same degree as men, resulting in their not earning as much and not earning for as long a time, so they are not able to save as much, not able to earn pensions to the same degree, and following separation, still not able to earn as much.
Out of this inequity, we have developed a body of family law that tries to give a fair deal to both parties, regardless of sex. Nearly half of marriages end in divorce, but most people do not have a clue what the financial terms upon separation will be, so the law has been (and is being) developed to protect against financial inequity resulting from marriage. This has nothing to do with who has a penis, and has everything to do with rectifying inequity incurred through parenting.
Note that there are a few policy problems that often complicate family law matters.
First, the law is based on generalities and may not be that good when dealing with a case that is not typical, such as when a spouse demanding support in fact did not pull his or her fair share during the relationship (e.g. sat on the couch watching TV, only took on Joe jobs, spent spent spent or drank drank drank). Foxy is facing this, and was wise to get a prenup that protects her from law that simply was not created with her situation in mind.
Second, the law is supposed to provide consistency, and therefore there is a lot of inertia built into to system. The law we have today was made yesterday, so it addresses yesterday’s needs. When we look at a typical marriage in the fifties, there was usually one primary income earner one primary parent, and longer marriages prior to separation (kept together for the sake of the children, for avoidance of social pressure, and for economic survival of the party who did not have a career), so the laws that arose from that period made a lot of sense. Today, the parenting and income earning roles are more often blurred, more marriages fail and fail earlier, and many (most if in Quebec) long-term spousal relationships are no longer formal marriages and therefore are not covered by divorce law and instead are covered by the often very uncertain body of non-divorce family law. Two income families with shared parenting or no kids, in which neither party took a career hit, are facing this inertia that would still have property equalization and ongoing post-separation income equalization via spousal support.
Third, duking it out in court over family law money issues gobbles up the money over which the parties are fighting, so there is a move in the system toward standardizing property equalization, and child support and spousal support amounts and duration, for by doing so, it makes it possible to solve cases with less ongoing expensive litigation. If a person does not believe that these standards are appropriate to a particular case, it can be quite an uphill slog to go against the policy entrenched grain. It would be better if parties learned what they were getting into before signing on the dotted line at the alter, and made an agreement accordingly.
One of the issues I’ve seen is that people BELIEVE that the person they love shares the same values and philosophy. And maybe, at the start of the marriage they do share the “we are in this together” or the “we keep it apart” thoughts. But 1) not everyone is really aware of the values of the person they marry - a lot of assumptions are made when people are “in love” 2) over the course of a lengthy marriage, opinions on such things change. And 3) over the course of a marriage, circumstances change. When I got engaged to my first husband, he was majoring in chemical engineering. When I got divorced, he was incapable of holding down a full time job and was very busy sleeping with women who were not me. The first guy, I was willing to enter into a half and half partnership with. The second - the one I divorced - didn’t deserve half of anything (fortunately, we didn’t have half of anything but debt - and I got materially all of that). By the time the marriage dissolves - if you’ve been working for a long time to keep it together - you may not be so eager for halvsies. (Of course, if you signed a halvsie pre-nup - you are probably living with that, but that might encourage you to cut your losses early rather than hanging on for years in a marriage that isn’t working).
Unfortunately, many people take years between when their marriage is past the point of no return and when they separate, many people continue on in marriages in which they are dissatisfied with the financial arrangements but do not see separation as being a good choice when looking at all the non-financial issues, and many people are simply abused to the point that they are not able to make a good decision.
In a perfect world, that is how it would work. But the world isn’t perfect. If it were, the bread winner wouldn’t so often be bitter after the divorce for having to continue the support. So often the decisions “we” made where made by the person who stayed home and the other person unwilling to argue about it and just went along. Please keep in mind that I am not talking about parents of children under five. If possible, a do think a parent should be home to care for younger children.
Id be very interested in hearing from primary supporters of households that had their partner stay at home if it was indeed a mutual decision where the breadwinner wanted the other at home even when the children were at school and earning his/her own money was something they were against if it took them out of the home.
In divorce negotiations, almost always both sides honestly and sincerely say “All I want is what’s fair.” Then they proceed to chew on each other’s shins until one or the other or both goes broke through litigation, one or the other or both has a breakdown and cannot continue the fight, or one or the other or both finally recognizes that they have different conceptions of what is fair so they had both best start compromising and settle for something that neither side thinks is fair but which both sides can live with.
I get a lot of clients who’s spouse is unwilling to get back into the job market after the kids are in school. Usually the underlying problem is not one of job availability (although it can be very hard to get a job that still permits the parent to be home when the kids arrive home from school), but rather is one of dysfunction arising from mental health or addiction problems. This makes it even more frustrating for the breadwinner, who in addition to having to support a couch potato, also has to tolerate the primary care giver not being that good of a caregiver. Added to this is the problem of the breadwinner often not really grasping the skill and effort necessary to raise children, and thereby mistakenly thinking that it is a simple and easy job. Meanwhile the kids get really messed up from the parent’s poisioning their environment, which adds to the frustration, anxiety and acting out by everyone in the family.
Some folks should not marry, let alone have kids. But they do, so the system does what it can to clean up the mess.
I am not sure how a pre-nup would help with this, though. You’d sign it when you had one set of shared values, so it would have you stuck where you started, not where you ended. I can see the value of the pre-nup in forcing people to make sure they are on the same page at the start, but nothing can insure you will stay there.
This occurred to me after I posted. It’s also a good argument against a more protective pre-nup: it might keep you in a bad marriage for longer than you should, because you think “At least my stuff’s protected”. It seems to me that by the time you get to that point, it’s all over anyway, and a clean break–or at least the start of a clear action plan–is called for.
But how would a pre-nup help with that? At the start of a marriage, I’d never say “You make your money and your choices, and I’ll make mine” because I’d never go into a marriage with that attitude. I’d want it to read “What we earn together is ours together”. If I had any niggling doubts that that was a bad idea, I wouldn’t marry the person. I’m not saying I couldn’t be wrong–obviously, bright people are wrong about human relations all the time. But I would tend to trust in my ability to call it off sooner rather than later. And, again, if there were previous assets, that’s different. But not going forward.
Well, I wouldn’t do that. I’ve very low tolerance for that kind of thing. So I wouldn’t get a pre-nup. I’m not saying no one should, I’m explaining why I wouldn’t get one to protect future assets. And it really does seem to me that, as I said above, a pre-nup might well just function to string out marriages that should end quickly.
I’m a primary supporter in a household where my husband stays home with our son. It was entirely our decision. He’s planning on staying home at least a decade, though we hope to home school for some part of that. That was also our decision, and one we skimped and saved for years (saving well over 100% of his net income) to be able to afford. I would not be surprised if he never worked full time until our child is grown: IME a household with a kid really benefits if one person’s career is flexible, no matter how old the kid is. Kids always need a lot of time, and a household needs support.
