Why aren't prenuptial agreements the norm?

I know a lot of people who have gone through divorce. Their stories read like a mix of Kafka and Lovecraft, as directed by David Lynch. I’ve read that 40 to 50 percent of marriages do/will end in divorce. I’m part of that data.

I’m guessing that the percentage of marriages that end in divorce is greater than the percentage of humans who end up on life support, yet a “living will” is something I would not want to be without.

Why aren’t prenups standard? Why doesn’t divorce just consist of a review of the agreed upon terms in the document?

(Mods feel free to relocate this to a more appropriate forum)

is this in the case where couples start out where one already has significant assets, or where they are starting together building said assets?

I’m thinking any/all cases, each having their own special needs.

Two reasons:

  1. Most couples who are on their first marriage don’t have any significant assets between them when they get married, so it never comes up.

  2. Why would you need a prenup when you’re in luuuuuuuuurvve?

There’s locations (Spain for example, with different “default values” by region) where the marriage contract, while not as detailed/pessimistic as prenup (it won’t include “who gets what in case of a divorce”), includes having to decide whether property will be shared or not and some other economical provisos: while people can always ask “what’s the usual” and pick that, there’s choices which make a possible later separation or divorce less complicated.

The historical reason behind this, in our case, is that the marriage part of our civil code needed to bring together laws that were very different: rather than pick The One Way, anything which had been different under the separate legal systems being unified got set as an option.

Not all, but most people who get married still assume that it will be until one of them dies. A pre-nup is a hedge on the marriage, and is like crossing your fingers when you say your vows.

This is probably more of an IMHO question instead of GC. I’m sure people have different reasons. But comparing it to a living will: everybody will die eventually, and you generally don’t have any control over whether or not you become medically incapacitated. But most people do have a significant amount of control over whether or not they get divorced, and don’t want to purposely give themself an easy escape.

Instead of divorce consisting of a review of the state’s agreed-upon terms for the division of assets, you mean?

It’s not clear to me that having a prenup would prevent couples from going to court, if that’s what you’re suggesting.

Well isn’t most of the unpleasantness about child custody and child support? If so, a prenup isn’t going to help much.

Insofar as the traditional* view of marriage being that it is, under normal circumstances, a non-dissolvable union. Prenups are at odds with that view.

Now you may argue that the traditional view is unrealistic or plain wrong - and I care not to debate that point, but the plain fact is, you can’t in one breath say “we will never part” and in the next say “…but if we do…”. A marriage that includes a prenup needs revised (or redacted) vows, IMO.

I’d say that’s the main reason. Most folks who get married are convinced (somewhat irrationally) that they have found the one human being in the world being they will live together with till death does them apart.

Indeed, and arguably, just should not be entering into marriage without such conviction.

But half the time they are wrong. I understand what everyone is saying, still puzzled.

It’s called the Optimism Bias. It seems to be a natural flaw in human perception.

Eh, I’d say “child custody and child support” are used as tools to deliver unpleasantness which stems from the relationship itself.

Everybody thinks they’re part of the other half.

The law already establishes a prenup. It’s just not the one some people like when it comes time for them to be subject to it.

As mentioned, most people have nothing when starting out. A prenup that is “unconscionable” - “I get it all, you get nothing” will likely be thrown out by the courts. So a fair prenup still has to give each partner a significant amount, which isn’t far off what the law already says. The only time its relevant is when the couple argues whether “ten million instead of 100 million” is fair or not. When the argument is “I worked and paid the mortgage” and the asset is mainly the house, it will still be divided 50-50.

Custody is always an interesting issue. Very interesting. No prenup is going to settle that.

Many cases the drama is aided by the action of one or both sides. When someone is determined to extract their pound of flesh or inflict punishment no matter what it costs, a prenup is just one more thing to litigate. If it seems unfair, it is more easily litigated. Nothing bring out the drama like a divorce, unless maybe it is an inheritance fight.

Many such fights spill from blame - “he cheated”, “she cheated”. The law does not define blame, and most times it’s a mutual thing - a loving couple do not cheat, so something failed - it’s likely not all one side’s fault; but the other side latches onto convenient blame levers. Blame is irrelevant - this is communal property, behaving like a jerk does not forfeit your right to half the house that you both jointly own.

Because they don’t think they need a pre-nup. It’s that simple, so you don’t need to look any deeper.

Take your basic, standard-issue couple in their mid-20s. How many of them have wills? How many of them have advanced medical directives? Heck, how many of them are regularly putting money into a savings account?

Which leads directly to another question? How many of them have assets that need protecting when they’re going into a marriage? Probably the only thing of value either of them own (rather than rent) is a car – which is not usually a point of contention in divorce proceedings.

All that stuff a pre-nup is supposed to protect, like investments, future pension benefits, stuff you want to make sure goes to your kids and not your ex-spouse, all that comes later in life.

Cool. I guess I’ll nurture along my own Pessimism Bias.:cool:

Yeah, I think if the minister were to run through all the declarations with “or until you start hating each other and get divorced” tacked on the end, it might be seen as a bit of a buzzkill.
Reality’s horrible like that :stuck_out_tongue:

I think friedo nailed it in post #4. Perhaps I can elucidate a bit.

1. Most couples who are on their first marriage don’t have any significant assets between them when they get married, so it never comes up.

This raises the question of what problems would a pre-nup solve or avoid compared to traditional divorce settlements, along with how easy or difficult would it be to construct a pre-nup that does indeed have the desired effect. When neither party has much to start with, it’s likely that after a number of years most assets will have been acquired through the partnership of the marriage. It seems to me that it would be a real challenge to predict how much would be acquired and through what means. Who’s going to have the better paying job? Will that person always have the better paying job? What about sweat equity and other non-tangibles (e.g., what’s the value of one putting the other through med school compared to the latter’s subsequent earnings)? I suspect that it would be a huge chore to craft a pre-nup that addresses these aspects in a useful way and that would not be subject to legal challenge.

2. Why would you need a prenup when you’re in luuuuuuuuurvve?

Here we get into the psychology of it. Insisting on a pre-nup can put a cloud over the notion of entering into a life partnership. It comes across as planning for not spending a life together with someone whom you’re ostensibly looking to spend a life together with. It screams “mine” beside a mindset of “ours,” and can put a sour taste on things from the get-go. Whether or not it would be more practical, a pre-nup directs attention toward the negative to the point where it can be like a self-fulfilling prophecy of doom. Human nature doesn’t care for that.