Pre-Nups for Ordinary People

[Forster]

But it doesn't happen to happily married people. And happily married people always stay happily married, because they've acted with intelligence and forethought. They have struck just the perfect balance - so clearsighted that they know with certainty that their marriages will always be happy and they don't have to engage in any nonromantic stuff like prenups.

I agree with your sarcasm whole heartily.

IMO marriage needs more balance between pragmatism and romanticism before and after the wedding date.

 

[mlp]

The fact is that in a divorce, the person with the most interest in grabbing onto as much money as possible, at the cost of emotional resources, general upheavel among family and friends, and attorneys' fees, will *win* any property dispute. IOW, the biggest jerk wins, and when their are children to be used as pawns, it's even worse.

 

[Digger]

That's why I say... spell it all in advance.

 

[ElaineV]

I found a good article, written by a lawyer, that spells out many problems of prenups: http://www.huffingtonpost.com/laurie-israel/prenups-dont-lawyer-up-me_1_b_942333.html

Here's one quote from the article:

The other big problem of premarital agreements is the process in which it is usually done. At a very tender and loving time in their relationship, the parties "lawyer up." They are now transformed into adversaries. [...]

a typical "off-the-shelf" prenup[:] It says that all money earned during the marriage is the husband's to control. All property accumulated before the marriage and proceeds and gains on it are also his to control. And the husband can decide whether or not to leave his new wife anything if he dies while the marriage is ongoing, even if they've been married 30 years. And she has no legal rights remaining to contest any of these terms. [...] The less-moneyed spouse is asked to get a lawyer, and her lawyer receives the draft. The lawyer then has to break the bad news to his client. She is devastated that her fiancé would be so mean. Their relationship may never heal from this initial blow.

[...] the anger and hurt generated by this process will always be remembered, and can weaken the marriage at the outset, even if the prenup gradually changes and becomes more balanced and narrowly drawn. The prenup may even make divorce more likely. Perhaps much more likely depending on what the prenup says and how bad the process of negotiation was.

Listen, I took a family law course when I was in law school. (I dropped out of law school after finishing the course with an A to, believe it or not, get married, among other things). So, I'm not naive about this issue. My husband and I talk frequently about the finances of our relationship and we discussed prenups before we got married. We still discuss them sometimes. We decided they simply don't make sense for us. And they probably don't make sense for most couples, either.

And I have to say, my feelings about prenups has changed. Prior to marriage I was more in favor of them than I am now. Now as a married person, I feel they are very likely to set up a marriage for failure.

 

[Forster]

Elaine, I'd agree if done the way your article states it could cause problems. Seriously the discussion should happen long before nuptials are imminent. Details don't need to be discussed right away but both parties ought to be aware that at least one of the parties involved wants one before the relationship gets too emotionally involved. If the happy couple can't work out the details on something like this ahead of time I don't have a lot of faith their marriage would have lasted anyway.

Nor do I buy the the typical off the self prenup giving the male control of all money earned during the marriage is the norm. That can be done w/o a prenup to an extent anyway and is also a "negotiable" finance discussion that should happen long before marriage. My account, your account or our account for money earned (or some combination thereof), no prenup needed.

While I don't doubt your feelings at all, I don't buy the argument that a prenup is likely to set a marriage up for failure.

 

[kazyeeqen]

Raise your hand if you're happily married - with or without a prenup.

[[raises hand]]

This has to do with precisely what?

 

[ElaineV]

Again, the example given in the beginning about the man owning a house prior to marriage and wanting to keep it after a divorce doesn't require a prenup. Property acquired before a marriage is generally separate property and doesn't become community or marital property (depending on the state you live in) and isn't subject to the rules that require division of assets during a divorce.

In the case of an 80-year-old man who thinks it perfectly reasonable that a 22-year-old woman he wants to marry so he can have a "trophy wife" ought to love him without any assurance that she'll be financially protected after his death... well, he can simply make a will that specifies how his assets that were acquired before marriage ought to be distributed after death. Only some of the property acquired during the short marriage would go to the wife and even then he doesn't necessarily need a prenup to keep the money out of her hands after his death (which makes you wonder why he'd even care about making sure she didn't "profit" after his death since he'd dead, afterall, and has no need for money). A likely better solution is to set up a will and trust to protect whatever his interests are. He doesn't need a prenup.

As I said before, you're happily married until suddenly you're not. It's easy to be smug while things are trundling along well. Time will tell how long the smugness lasts.

Well, in the case of my marriage, we've faced a long and expensive legal battle where we didn't always agree. It's been the toughest thing I've ever done in my life and it's caused us much stress. And prior to that, both his parents lost their homes during Katrina and his mother came to live in my condo for a few months while she got things settled. That was a lot of stress on our relationship as well. And we survived both of those situations. We are incredibly well-matched and we're in it for the long haul. I simply trust my husband and my future self to settle any future disputes more than I trust a piece of paper written by a greedy lawyer.

 

[das_nut]

I found a good article, written by a lawyer, that spells out many problems of prenups: http://www.huffingtonpost.com/laurie-israel/prenups-dont-lawyer-up-me_1_b_942333.html

So basically, in the scenario given, pre-nups are a problem because it reveals your future spouse has a tendency to engage in legal action without any realization what he was doing?

Sounds like something you might want to know *before* marriage.

 

[K-II]

(which makes you wonder why he'd even care about making sure she didn't "profit" after his death since he'd dead, afterall, and has no need for money).

Since you put it like that, it's hard to see what could possibly go wrong. Well... I can think of one small thing, but... I wouldn't want to ruin the surprise.

 

[ElaineV]

This is how this conversation always goes, by the way: "Oh Elaine, you think you didn't need a prenup, but your marriage is doomed to fail (despite declining divorce rates or the statistical improbility of this particular marriage failing) and you needed one. Let me tell you about all my poor previous decisions and how I got taken by this gold-digger..."

If you marry someone you hardly know and you never discuss finances then your chances of divorce are probably pretty high. But the vast majority of divorces are fairly amicable and don't ever get into the courtroom at all, with or without a prenup. When you go into marriage fearing for the worst and hiring lawyers to protect your assets, you're setting yourself up for failure.

 

[ElaineV]

Since you put it like that, it's hard to see what could possibly go wrong. Well... I can think of one small thing, but... I wouldn't want to ruin the surprise.

A prenup will not protect you from getting murdered.

 

[kazyeeqen]

No one is saying your marriage is doomed to fail or that you needed a pre-nup and if that's what you are getting from the comments you really aren't paying attention.

 

[das_nut]

This is how this conversation always goes, by the way: "Oh Elaine, you think you didn't need a prenup, but your marriage is doomed to fail (despite declining divorce rates or the statistical improbility of this particular marriage failing) and you needed one. Let me tell you about all my poor previous decisions and how I got taken by this gold-digger..."

The same argument could also be used to dismiss the idea of wearing seatbelts. After all, cars are getting safer, and your particular vehicle is probably not doomed to be in a serious car accident.

 

[ElaineV]

The same argument could also be used to dismiss the idea of wearing seatbelts. After all, cars are getting safer, and your particular vehicle is probably not doomed to be in a serious car accident.

seriously? You want to compare your life to a couple hundred thousand dollars??? You really think the risks are similar?

I'm all for unromantic financial discussions prior to marriage. I just think most people who think prenups are a good idea are people who haven't done the research and don't understand marriage law. Well, wtf? Marriage is a legal arrangement and if you don't understand it or dont like it then don't get married. Don't circumvent the law by making weird side contracts unless they're actually necessary to protect kids from a prior marriage or something. But usually it would just make more sense to not get married. What is so wrong with that idea?

 

[I Heart Corey Haim!!]

Neck? lolwat... how do you even see over the dashboard?

no worries I am not that short....lol....I can see over the dashboard.....

peace

 

[Forster]

Agreed. I see asking for a pre-nup as being a sign that the person asking for it doesn't really see marriage as being completely under the control of the parties getting married. Marriages that last last because the two people involved know that marriage requires constant mindfulness, and also are convinced that the state of being married is worth working for. They don't just want to be with the partner they are considering; they want to be in a married state. They don't just value the person they are considering; they value being in a married state.

Someone who goes into it assuming it will fail, and actively takes step in anticipation of it failing, is setting it up for failure because they are acknowledging that they do not have what it takes to realize that marriage is what you make it. Barring "til death do you part", your marriage isn't going to end due to some set of circumstances beyond your control, unless you have made the bad mistake of marrying someone who turns out to be an abuser, but even so, the signs of an abuser should make themselves known long before you find yourself married to one.

I just don't think that a potential partner who can foresee circumstances under which he will no longer be willing to work on our marriage, and choose to end it instead, is someone I would be wise in marrying, since the emotional loss would be much more devastating to me than someone getting half of our community property. And someone who sees me as a person he would need to protect himself from should he choose to walk away from our marriage would be demonstrating so little knowledge of who I am at my core he'd have no business proposing marriage to me in the first place. A pre-nup is not a substitute for knowing the basic nature of your partner; who they are and what their values are, and how they behave when things go bad. There should be ample time before marriage to determine these things, and pre-nups that attempt to circumvent the laws of the state in which you marry usually get thrown out anyway.

I don't quite buy that, assuming it will fail and preparing in case it fails are two different things. I would assume that virtually everyone entering a marriage believes it will succeed, yet many don't. I see nothing wrong with hoping/working for the best and being prepared for the worst. I would not be the slightest bit upset or offended if a potential spouse asked me for a prenup... I'd be thinking smart woman, sounds like a keeper.

 

[nog]

I feel they are very likely to set up a marriage for failure.

What is that feeling based on?

--

As for the comments about a prenup means the person is expecting a marriage to fail, I don't agree. I think there could be a variety of reasons and to frame it that way is to view it in a very narrow way (which is no wonder you're against it).

 

[Forster]

Well this is my personal take on why I wouldn't bother marrying someone who feels the need to prepare for the worst in me should he walk away from our marriage. And I don't really view thinking that a pre-nup will circumvent community property laws is an accurate indicator of intelligence. A smart person would know the futility of trying to bind someone to a contract that isn't likely to be upheld in court.

Any evidence that a not overly restrictive prenup won't hold up in court? I.e., you entered into the marriage with (list assets) and I entered into the marriage with (list assets) we agree that those our our individual assets and if the marriage dissolves each party gets to keep said assets, furthermore we agree that all assets acquired jointly after marriage are ours to share and become joint marital assets? Because IMO unless there are outrageous inequities or illegal terms it will hold up. Of course not mucking up the title of the assets (such as putting a residence formerly owned by one spouse into both names) etc., would be important.

 

[Rosie1]

I haven't read through this whole thread but I'd be curious/interested in seeing some sort of chart (if there is one) of pre-nup marriages that have lasted vs. ones that haven't, etc.

 

[Forster]

Here's actually a pretty good article on prenups for those that are interested, covers a lot of whys.

http://money.cnn.com/2001/06/13/strategies/q_divorce/index.htm

Interesting exert:

Get it right the first time
There are times when prenuptial agreements will not be honored by the court, according to Wilson, so it is important to be sure the prenuptial or post nuptial agreement is legal and valid. Wilson pointed out three different circumstances under which courts may not uphold a prenuptial agreement.

The first is if one party is coerced to sign an agreement under the threat that other person won't marry unless a prenuptial is signed. Second, courts may also invalidate prenuptials if both parties did not have legal representation on the agreement. Finally, a prenuptial may not hold up in court if one party or the other did not make full disclosure of all assets. Although most financial planners recommend prenuptial agreements to preserve assets, they do not offer complete protection in all states. Many states require what is called fair compensation, meaning you cannot get away with paying the other party to the marriage absolutely nothing following the divorce. In those cases, however, a prenuptial agreement will allow you to determine how you pay.