Because people are stupid and naive. They think nothing bad will happen to their relationship despite the odds.
I don’t agree with the fact that if you don’t have anything you don’t need a prenup. When I got married the second time, I didn’t have much but I knew I would. As a matter of fact, I could barely afford the lawyers to do the prenup. I wanted anything I earned and saved including profit sharing, 401K, retirement, property that is in my name, no alimony paid to either party and no combining of inheritances, taxes or debt. In other words, what I earn, I keep, what he earns, he keeps.
I didn’t have a bad experience financially with my first divorce, I just got older and wiser and wanted to protect myself from the odds. I also knew who I was marrying. 15 years later, he doesn’t have a dime and won’t be taking my hard earned dimes if we split up.
As noted above, pre-nups can be challenged in court when it is time to split up. Just because you and your husband signed documents that what you separately earn and acquire during your marriage will be kept separately, could easily be challenged and a judge could easily declare your pre-nup null and void as it is clearly inconsistent with general thinking of shared assets accumulated during a marriage. So don’t be surprised that when 15 years later if he doesn’t have a dime and he wants to leave and take some of your dimes…he might just be able to do that.
When I walk down an aisle and swear ‘forever’ to you, that means I will stand by you through thick and thin. If you end up paralyzed, I’m there. Blind? I’m there. Etc. I’ll love and raise your children, no matter the sacrifice to myself, whatever the circumstance. I’ll even make the heart wrenching choice to disconnect you from that machine, when the time is right, if that’s what you want.
If you feel the need to protect your investment account and summer home, should divorce arise, well, that tells me we’re not really on the same page.
If you trust me to wipe your ass, raise your children, and pull the plug, then I’m going to have an issue with you not trusting me with money or property.
It’s a similar situation in South Africa - if you marry without an antenuptial contract, it defaults to marriage in community of property (where the couple essentially become one person for financial purposes) and if you want to avoid that you have to sign a contract. One of the things my parents told me is “if you get married, make sure you have an antenup” (and we’re regular middle-class people, not particularly rich) because they have some horror stories of couples who married on impulse, only for the wife to discover that the husband’s a gambling addict and she’s on the hook for all his debts.
I never considered the question when I married (48 1/2 years ago and counting). But if I had I would have concluded that it made marriage more like contract than a commitment. I realize that it is a contract and, historically, relatively few unpropertied people bothered (until the churches decided it was a good source of revenue and made it sinful to cohabit without marriage).
When I made out my will, the notary asked what was our “marital regime”. This was a Quebec notion, I think. When I didn’t have the foggiest idea, he asked what was my domicile when we married. Again hard to answer. I was (temporarily) resident in NY, about to live in Conn (where my wife was teaching and I would commute for three months until my Columbia job ended), we were married in NJ and then moving to IL. So the notary asked where I had been domiciled before moving to NY. That was Penna and he decided that determined out marital regime and we were separate as to property.
If worse came to worse and my wife died and I remarried, then I would definitely want a pre-nup to guarantee that my estate go to my children and the new wife’s go to hers. But that is a totally different situation.
Indeed - and if the engaged couple were to tell the minister they should get a prenup, just in case, as it’s a 50/50 chance of failure, he would likely consider it his duty to advise them not to marry.
What problem exactly does the OP think routine prenuptial agreements will solve?
Contentious divorces? Litigation? Child support and custody?
If you’ve got significant assets prior to marriage, and your future spouse does not, then you might consider a prenup. But just because your future spouse signed a prenup doesn’t mean you avoid litigation. Prenups have to follow state law or they are void. And so a prenup that states that any assets earned during the marriage by party A will remain the property of party A upon divorce might not be enforceable. Usually a prenup can only protect assets earned prior to the marriage.
A prenup isn’t going to do anything to prevent hurt feelings or irrational vindictivness towards ex-spouses. So if everyone routinely signed prenuptial agreements, what specifically would change?
Is that type of pre-nup even legal in a community property state like California? I have my doubts. Pre-nups generally protect assets you bring into a marriage, not assets you earn while you are part of a marriage.
It is interesting how much misinformation there is out there. Of course you can protect future assets such as retirement. Of course you can protect yourself from alimony. While the equity of a home purchased during the marriage must be split, if the money came directly from one party prior to the marriage or by inheritance that hasn’t been combined, that money goes back to the original spouse if noted. Prenuptual agreements are rarely overturned unless there isn’t full disclosure or it can be proven someone signed under duress.
A friend of mine has money but also has significant future earning potential. He had his future spouse sign a prenup that says she walks with one million dollars and no claims of any property, alimony or equity in his business.
Agreements can be overturned but it isn’t an easy process and definitely not routinely done if set up correctly. It is like any other contract. You can’t decide you don’t like the terms after the fact.
We were already living together when we got married. I had some student loan debt, a used truck and some crappy furniture. She had some credit card debt, a used car and some crappy furniture. What exactly the fuck would our pre-nup have covered? A huge percentage of first marriages are couples in the same boat. How is this, in any way, puzzling?
People with no assets don’t get pre-nups. Most people with significant assets do.
Just to highlight, no one really knows where the 50% number comes from, but, even if it has some truth to it, it lumps people who married at 16 with people who married at 31, and those groups have little in common with each other as far as divorce rates. The Time article is said that of people who married in the 80s, with a college degree and after the age of 26, 81% are still married after 20 years.
Note the important bit in the California link - “unconscionable”, or unfair.
A prenup must be fair. “I got my millions, you take nothing” will be unfair. Most marital property settlements proceed with the assumption that the communal property is jointly earned. Even if A earned the millions, B provided the housekeeping, moral support, yadayada to make the partnership work. B lived in the family home(s). B drove the family fleet of cars. Therefore, that is joint property.
If B says in the prenup "I’ll take $1M instead of $5M nobody would consider that terribly unfair. however, if A walks away with $100M accumulated during the marriage, B gets nothing - that won’t fly. So by trying to take it all instead of being fair, a prenup risks losing all.
here’s an example. 2 lawyers getting married in BC - he’s doing well, she’s up to her eyeballs in credit card debt. Day before the wedding, he springs a prenup on her - sign or the fancy wedding is off. Basically it says she has no claim on his professional business, and she earns a share of his (soon to be their) big expensive paid-off home 10% each year until it’s half hers.
She signs, assuming “ha, it’ll never stand up in court”. Net result, years later, it does. The judge said (a) she’s a lawyer, knew what she was signing, you cannot sign on the assumption it will be tossed by the court, (b) It’s not unfair - she did earn her share of shared marriage assets over the years, so she was not being completely cut out, (c) the husbands practice was his own, self-built enterprise, not obviously part of the marriage assets, therefore it is not unfair that she should have no claim, (d) she has her own professional practice, so she’s not being dumped with nothing.
The key here is “fair”. The more unfair, unbalanced the agreement, the more likely it gets tossed. The presumption is that the screwed-over spouse did not know what they were signing up for, or did not have the bargaining position to insist on fair terms. One commentary I read on the case suggested that if he had said “you never get a 50%share of my house” the agreement would have been tossed.
As a side note - an inheritance typically is separate from marital assets until it is mixed in with them. That $400,000 your aunt left you is yours sitting in the bank account; but when you pay off the mortgage with it, the family house is still 50-50, and if the spouse has signuing rights to the account and spends from it, probably it’s considered communal property.
(A friend retired and sold the business to his son. That means the son bought it, it’s half the daughter-in-law’s. If he’d kept ownership and eventually the son inherited it, she’s have no claim.)
That’s interesting - thanks. I can’t help wondering if the stats aren’t also sometimes skewed by serial divorcees (that is, if you’ve had 9 failed marriages, and I have one that lasts, does that mean between the two of us, we have a 90% failure rate?)
Unless you have significant assets, why would you want to have a prenup? How you think you might want to handle your divorce before you get married may be very different than how you want to handle it once you do get divorced.
Let’s say you get married at 20 and divorce at 40. Do you want to be held to the contract you drew up at 22? What if your desires have changed in the past 20 years. I image a prenup for a 20 year old has things like “I get to keep my kick ass stereo and dog. We split the bank account in half.” I hate to think what a 20-year-old would come up with for how custody should be handled for their yet-unborn child.
I would think in most marriages, a prenup would be a hindrance during the divorce.