Pre-Nups for Ordinary People

[mlp]

Most mediators dealing with legal matters are lawyers. The role of a mediator is to get both parties to a dispute to compromise to resolve the dispute. By heading straight to a mediator, you are viewing this as a dispute straight off the bat.

Further, a mediator can't give legal advice - to give legal advice would automatically put her in a conflict of interest position.

Really, people should be working this out between them. The terms should then be taken to a lawyer, who should be instructed to put the terms into writing in the proper form. That lawyer would be the lawyer for one of the parties. The role of the lawyer for the other party is to review the document to make sure that it sets forth the terms that the parties have agreed to. The role of both lawyers is to advise their respective clients of what their legal rights might be absent an agreement, how the agreement changes that, and also to mention other circumstances that might arise that the parties haven't considered and which should be addressed. The fact that both parties have been adequately advised makes the difference between a binding and a nonbinding prenup.

It's no different than the factors that anyone going into any other kind of partnership needs to consider. There's no reason for it to be adversarial, unless the parties really have very different expectations. As a transactional lawyer, I always thought of myself as being in the business of litigation avoidance, because if you start out with a clear and ambiguous agreement that covers any foreseeable possibility, then if that possibility actually occurs, there's no room for dispute.

 

[Forster]

Have you ever used lawyers to come up with agreements that involve very human issues? The kinds of things many lawyers do can easily jeapardize human relationships. For example, lawyers often use a private investigator to make sure the other party or parties are disclosing all the facts. The mere fact that a PI is digging up dirt can really damage any trust built between the parties. It can be hard to repair that kind of thing.

In theory it makes sense that both parties are represented by legal counsel and you come together and draft an agreement. In reality, that's a tricky thing to do without hurting feelings and creating problems. The vast majority of people see lawyers and contracts and adversarial. This is why it might make more sense, if you feel you need a prenup, to use a mediator instead.

But again, prenups really aren't necessary for "ordinary people." Premarital counseling, that includes financial counseling, is probably a better idea.

I've entered into many legal agreements with others over the years I can't think of one case or even think of a case where a PI digging into someones past happened let alone happened often. I do not buy it and if one felt it necessary to hire a PI to dig into a potential mates past maybe it's time to walk away from the relationship.

I do not believe one can use a mediator to finalize a prenup, maybe hash out the details, but my understanding for it to be valid both parties have to consult with their own attorneys.

I agree premarital counseling is excellent and every couple ought to go through it ahead of time, we did and it was great. But as far as a prenup being necessary for "ordinary people", yeah in a lot of cases it is, especially as couples are getting married later in life or one or both participants are on a second marriage and/or have kids. In other cases no it isn't a necessary "evil" to go through, there would have been absolutely no point in getting one when we got married, neither of us had any assets, significant debts or previous children.

I highly recommend getting married when one is young, before life complicates things, lol.

 

[mlp]

I think that all of these TV shows in which law firms have PI's on staff or on retainer are giving people a weird distorted view of how lawyers operate.

I've never known a single lawyer or law firm who has used a PI, let alone have one on staff or on retainer. Maybe the high profile, publicity hungry divorce and personal injury lawyers who spend most of their time getting their faces on TV, but no *real* lawyers. Even the insurance defense lawyers I've known haven't used PI's.

 

[ElaineV]

The very first lawyer we hired to help us with a family law matter used a PI. It's rather common actually. This fact was used against us in court later, implying that we weren't trying to cooperate.

 

[mlp]

The very first lawyer we hired to help us with a family law matter used a PI. It's rather common actually. This fact was used against us in court later, implying that we weren't trying to cooperate.

Well, I've dealt with hundreds of lawyers and law firms all over the country over several decades, and I can tell you that none of them used P.I.'s. Jeez, I've never even met a P.I. - you would think that if they were "rather commonly" used by lawyers I would have stumbled over one at some point.

 

[ElaineV]

Hmm
Well I guess what happens in Vegas stays in Vegas.

 

[kazyeeqen]

I don't see any difference between your 'holding someone accountable' and what I call 'blaming'.

People are all different, and I'm not willing to say who should or should not get married and why. Marriage means different things to different people and not everyone thinks that it's for life or you failed.

 

[das_nut]

Of course there will always be exceptions, but most marriages break up because people choose to walk away from them. Even when disaster like illness strikes though, people still choose. As I said before, if it isn't ended by death, it's ended by choice, and it takes two people to make that choice.

It only takes one person to walk away from a marriage. Perhaps you don't want to admit that to yourself, but when you're married (or in any sort of relationship, really), you do not have control over the other person, and that directly results in you not having complete control over the relationship. You can do the best you can, but if the other person truly gives up, there's nothing you can do.

 

[ElaineV]

A lot of people think that every marriage has a 50% chance of failure but the reality is that there are many indicators of A marriage's likely success or failure. Marriage is dissimilar to the flip of a coin. For example the better educated you are, the wealthier you are, and the older you are when you marry the more likely you are to stay married. There are even other predictors like whether or not one partner smokes. The studies show that the more similar the partners are the better chance of success their marriage. So if you take marriage seriously, you do your homework, and you pick a partner worthy of your partnership, then you do have a greater chance of success than failure. Put the work into it and you have an even greater chance of success.

 

[Forster]

A lot of people think that every marriage has a 50% chance of failure but the reality is that there are many indicators of A marriage's likely success or failure. Marriage is dissimilar to the flip of a coin. For example the better educated you are, the wealthier you are, and the older you are when you marry the more likely you are to stay married. There are even other predictors like whether or not one partner smokes. The studies show that the more similar the partners are the better chance of success their marriage. So if you take marriage seriously, you do your homework, and you pick a partner worthy of your partnership, then you do have a greater chance of success than failure. Put the work into it and you have an even greater chance of success.

I agree a lot of peeps think that. I, nor my wife ever thought that though. Seriously we even checked out our prospective parent's relationships and how well they functioned and whether they were similar to each other. Just my personal opinion as I don't know if any research backs it up or not, but it was always important for me to find a spouse who's parents hadn't divorced, who stuck together even when it got hard and worked things through rather than just end the relationship. Figured this was learned behavior.

 

[nog]

So if you take marriage seriously

This stood out to me as important. Your view on marriage is not necessarily shared by everyone. How you view marriage, what it means to you does not mean the same for all people.

 

[kazyeeqen]

I agree a lot of peeps think that. I, nor my wife ever thought that though. Seriously we even checked out our prospective parent's relationships and how well they functioned and whether they were similar to each other. Just my personal opinion as I don't know if any research backs it up or not, but it was always important for me to find a spouse who's parents hadn't divorced, who stuck together even when it got hard and worked things through rather than just end the relationship. Figured this was learned behavior.

I always kind of thought it was learned too, though I have no idea if there is any truth to it. We'll see what it means for me, since I'm the product of a broken home and all. I just always thought that people I knew who's parents stayed together always seemed more... set on marriage being totally permanent, no question about it.

My mom's first marriage (to my father) was abusive, so I also have strong feelings about not trying to stick it out to the detriment of one's health or happiness, not that anyone disagrees with that here, but I just think I look at marriage a little differently as a result of that upbringing.

 

[Forster]

I always kind of thought it was learned too, though I have no idea if there is any truth to it. We'll see what it means for me, since I'm the product of a broken home and all. I just always thought that people I knew who's parents stayed together always seemed more... set on marriage being totally permanent, no question about it.

My mom's first marriage (to my father) was abusive, so I also have strong feelings about not trying to stick it out to the detriment of one's health or happiness, not that anyone disagrees with that here, but I just think I look at marriage a little differently as a result of that upbringing.

Definitely no one should stick in a marriage where there is abuse, I'd actually be way more concerned about marrying someone who's parents stayed in that type of a relationship rather than one who got out and later found a healthy relationship they were committed to.

We were actually quite surprised at how similar our backgrounds (all found out before we got engaged) were despite being raised in completely different parts of the country and urban vs rural settings and also at how very similar our families and parents relationships were with each other. At this point in our relationship nether one of us has any doubt whatsoever that we're in it for the long haul.

 

[led.boots]

The problem I have with prenups is that they seem to favor the men more commonly.

I've been married 25 years, no prenup. My husband had assets when we got married, we now have two adult children. My husband had a severe traumatic brain injury without the personality change discussed earlier, but is left with other deficits. Prenups can't protect us from hurt, from life. And, um, in sickness and in health, for richer or for poorer.

 

[das_nut]

A lot of people think that every marriage has a 50% chance of failure but the reality is that there are many indicators of A marriage's likely success or failure. Marriage is dissimilar to the flip of a coin. For example the better educated you are, the wealthier you are, and the older you are when you marry the more likely you are to stay married. There are even other predictors like whether or not one partner smokes. The studies show that the more similar the partners are the better chance of success their marriage. So if you take marriage seriously, you do your homework, and you pick a partner worthy of your partnership, then you do have a greater chance of success than failure. Put the work into it and you have an even greater chance of success.

That still doesn't eliminate the risk, it only reduces it.

 

[ElaineV]

That still doesn't eliminate the risk, it only reduces it.

But the "risk" is this: having to abide by standard state divorce laws. As has already been explained, prenups will not protect against broken hearts, crazy people, or general bad luck. Life carries risks. All prenups do is circumvent state law by changing divorce distributions, often to the severe disadvantage of one partner.

 

[Forster]

But the "risk" is this: having to abide by standard state divorce laws. As has already been explained, prenups will not protect against broken hearts, crazy people, or general bad luck. Life carries risks. All prenups do is circumvent state law by changing divorce distributions, often to the severe disadvantage of one partner.

Saying a prenup circumvents state law is like saying a will circumvents state law.

Please explain how trying to protect a premarital asset in the event of divorce servery disadvantages one partner anymore than getting married later in life with money in the bank and a paid for house and having half of it disappear after a couple of years of a marriage that went bad? I'd rather look at it as which is more equitable. If the prenup is too burdensome on one party or is inequitable... don't get married.

 

[ElaineV]

Saying a prenup circumvents state law is like saying a will circumvents state law.

Please explain how trying to protect a premarital asset in the event of divorce servery disadvantages one partner anymore anymore than getting married later in life with money in the bank and a paid for house and having half of it disappear after a couple of years of a marriage that went bad? I'd rather look at it as which is more equitable. If the prenup is too burdensome on one party or is inequitable... don't get married.

Premarital assets are already "protected" by state law in the event of a divorce. The only way they become marital or community property is if the owner gives the asset or part of the asset to his or her partner during the marriage.

As explained in the link I cited earlier, prenups are contracts that violate contract law by a) being coercive and b) lacking consideration.

 

[mlp]

The problem I have with prenups is that they seem to favor the men more commonly.

I've been married 25 years, no prenup. My husband had assets when we got married, we now have two adult children. My husband had a severe traumatic brain injury without the personality change discussed earlier, but is left with other deficits. Prenups can't protect us from hurt, from life. And, um, in sickness and in health, for richer or for poorer.

That's because they're only in the news when some wealthy guy in the public eye (usually an entertainer) gets married/divorced. I think a lot of people's concepts about what a prenup is about are colored by the Hollywood lifestyle.

The reality is that women get hosed in divorces more than men, on the average. They are under no advantage at all if they happen to have been the primary income earner, and they continue to be under a severe disadvantage if they have foregone careers/career opportunities to raise children.

Reading this thread, it's come home to me how much this general financial hosing is the result of women's general tendency to be starry eyed romantics rather than pragmatists when it comes to relationships.

 

[mlp]

Premarital assets are already "protected" by state law in the event of a divorce. The only way they become marital or community property is if the owner gives the asset or part of the asset to his or her partner during the marriage.

If even the income from separate assets is used to finance the couples' lifestyle or part of it during the marriage, those assets can either be deemed to have become marital assets, or the spouse with those assets can be forced to continue to supplement the other's lifestyle, which comes down to the same thing as losing the separate assets.

Further, in noncommunity property states at least, the amount of each person's separate assets is a factor in how the marital assets are divided. Again, that functions as a loss of separate assets.