My best friend’s wife “realized” at 45 that she was a lesbian. She walked out, leaving her husband and a minor child. Because their home was furnished with stuff she inherited from an aunt she had never met, she wound up with the furniture.
My buddy got home from work to find an empty house. She had hired a crew and timed things so that hubby would be at work and daughter at school. They slept on the floor for a few nights.
Meanwhile, the ex was sharing an apartment with her friend, so she had no use for the furniture and sold it via Craigslist.
Amongst my friends, this was typical for divorce and it is what got me wondering about prenups.
Prenups that specify how child support or custody will be handled are unenforceable. Judges award child support and custody based on the best interests of the children, a parent cannot sign away a child’s right to child support.
Of course, if one parent doesn’t pay child support and the other parent never tries to collect child support, then the first parent doesn’t pay child support. But if the second parent years later decides that, hey, the kid deserves child support after all, the fact that years ago they agreed not to ask for child support doesn’t matter, they can collect back child support.
How would a prenup have helped either party in this divorce? Generally prenups are used to specify that assets brought to the marriage remain individual assets and don’t become community property. I doubt your buddy would have insisted on a clause the specified that the household furnishings his wife brought to the marriage would become community property. And anyway, this is over a couple thousand dollars worth of end tables and chairs. A prenup can protect your assets, but it can’t protect you from a bitter vindictive jerk of an ex-spouse.
Right. As the linked articles indicate, it does seem to be roughly true that about a third to a half of all marriages end in divorce. But that doesn’t mean that about half of all married people end up getting divorced. Also, divorce is very unevenly distributed demographically, as this quote from the last article indicates:
So the couples who are most likely to divorce (poor, less educated, minority) are also the ones least likely to worry about pre-nups.
Also, a lot of couples have either a sentimental or a religious objection (or both) to contingency planning for the failure of their marriage. In cultures where marriage is regarded as a sacred bond, divorce is seen as a deplorable outcome of last resort, not as an option whose financial consequences it would be prudent to plan for.
I dunno, just grasping at straws. Dude built the marital home, three car garage, and workshop. Built. Help from fiends and relatives, but he built the fucking thing. While working forty hours a week. Following to a tight schedule set by the seller of the materials. In order for the construction loan to turn into a mortgage, he had to be on time.
His mortgage was paid off.
The divorce forced him to mortgage the home so he could pay her for her half. The value of the house is waaaay out of his price range. Just sucks.
Cecil quotes J. Allan Petersen as saying “It all began when the Census Bureau noted that during one year, there were 2.4 million marriages and 1.2 million divorces. Someone did the math without calculating the 54 million marriages already in existence, and presto, a ridiculous but quotable statistic was born.”
It is a pity that he can’t afford to own outright the house that he put so much time and labor in, but as Lemur pointed out, a prenup isn’t likely to have made any difference.
If the property acquired during the marriage (such as the house) is common marital property, and common marital property is split 50-50 at divorce, and a divorcing couple can’t actually split a house because they no longer want to live together, then the house has to be sold or mortgaged in order to split its value between them.
How could a prenup get around that? Insert a clause that says “if I build something with my own hands then it automatically becomes more mine than yours and I get first dibs on it even if it is legally considered a shared asset acquired during the marriage”? IANAL, but I don’t really see how that would work.
I’m guessing he didn’t own the house before the marriage- so a pre-nup probably wouldn’t have helped anyway. And if the mortgage was paid off but he can’t afford to take a loan against it to pay for her half, either they were married for quite some time or she contributed income to the household or both.
As for why most people don’t have them- when I got married, we didn’t have any separate assets. We had a car and furniture which we bought together , and the wedding gifts which were given to both of us. Neither of us had children ( which is another reason people have prenups). Aside from the fact that the lawyers’ fees would have been ridiculous with that little in assets, getting a prenup would have been saying not " I want to share my life with you" but “I want to keep everything separate from you”. Kind of like the part in The Joy Luck Club where they keep a tab of who bought what and whether it’s a joint expense.
As others have said, unless there are significant assets involved, there is really no point. Generally what a person owns before marriage stays his after marriage, and what is earned during marriage (except inheritance) is equitably split. Equitable does not mean equal, it means fair.
That sounds simple enough, but take Tiger Woods for example. He had already earned millions before marrying that Swedish chick. But they marry and he buys a house for the both of them. Now that is marital property. He wins golf tournaments and earns money while she shops on Worth Ave. Doesn’t matter. What is earned during the marriage is subject to an equitable split because she presumably contributed by being on his arm at social events, blowing him every so often, and just being a companion. He agreed to share things with her; that’s what marriage is.
So, when/if a divorce happens, they can argue about what’s fair/who did what/who should get what, etc. or they can rely on a pre nup that says Swedish chick agrees that $50 mil is fair. Unless something happens that makes that amount grossly and terribly unfair, a court will enforce it.
But otherwise, it has really no function for regular people…
They were married a while, but he paid off the mortgage by working two jobs and building the home himself. He got a good deal on the property, purchased lumber, etc when prices were artificially low, then built the house and associated structures himself. He busted his ass building a home that has increased in value. Sweat equity, some of which I chipped in.
Sometimes the law doesn’t work, and some people are crap.
I don’t disagree, but when he was working two jobs and building the home, who was going grocery shopping, cooking the meals, and keeping the house clean? I’m not saying it should necessarily be 50/50, but his wife put aside some of her choices with the expectation of having part ownership of the home.
To leave her with nothing in that house would seem to be unfair (although I admit I don’t know all of the details).
The thing is, this was HER house too, she lived in it for years. Someone popped out the kid, someone changed diapers and cooked meals. If he built a house and did all the housework and 2 jobs at the same time and raised a kid all by himself - well, then in his case the law screwed him. Generally in these situations, the truth lies in the middle somewhere.
If he came home one day and she was gone - a common story - somebody was clueless or blind as well as somebody else was a jerk. However the law does not assign shares based on blame, it goes 50-50 absent an existing*** fair ***agreement.
As for selling the furniture story - while a couple is married, it’s communal property. generally, they both have access to communal property and the right to dispose of it. Some items, like cars and houses, require formal signatures from the registered owners; but you can sell the sofa or the dresser (or the works) without getting a signed release from the spouse, especially if you brought it into the marriage. She could also clean out the bank account and run up the credit card legally. I don’t think a prenup covers during the nup, only once the case reaches the courts.
Some Canadian provinces have laws that require the informed, independent consent of both spouses before a sale or mortgage of the family home is legal. (Goes back to the pioneer days, forbids the husband from losing the farm in a card game). I assume some US states have the same provision.
Although I agree that such an outcome isn’t fair, I can’t agree that “the law screwed him”. There is nothing recondite or unclear about the basic family-law principle that assets acquired during a marriage are shared by the spouses and must be divided equally between the spouses upon divorce. Anybody who gets married has the responsibility to find out what the legal rights and obligations of marriage are, and how it affects their legal claims to property.
If the ex-wife contributed nothing over all those years of marriage and finally betrayed the husband’s trust and generosity by walking out and demanding half of everything anyway, then SHE is the one who screwed him.
And/or, if the husband naively assumed that because he was the one building the house then it would automatically be legally his, then by foolishly neglecting to find out the real facts, he helped screw himself.
Either way, though, I don’t see that the law is responsible for the unfairness in this situation. If the law decrees that anything a spouse acquires during marriage belongs to both spouses, well, you have been warned: if you don’t like it, then don’t get married.
