More from the words of Jed Abraham
Even as courts have begun to enforce certain kinds of prenuptial agreements, they have not relinquished their tight control over them. They treat an engaged couple as being a special confidential relationship. The couple owes a heightened duty of fair dealing to each other. They have to make full financial disclosure to each other, or at the very least, each has to be keenly aware of the magnitude of the other’s wealth. There can be no “Here honey, sign this, my lawyer says it’s just a technicality,” two hours before the wedding ceremony. Honey should preferably have her own lawyer, too.
The pre-nuptial agreement may not be unconscionable. Naturally, courts differ about what that means. Some consider the fairness of the agreement as of date it’s signed; others look to see if, at the time of divorce, the wife comes out with much less property than equitable distribution would have given her. If she does, and especially if her husband did not fully disclose his wealth at the time the agreement was signed, the courts may not enforce it. If the couple moves to another state and they divorce there, the new state may apply its own law to their agreement, contrary to their original expectations. And if one’s home state ever decides to change its mind again and find pre-nuptials contrary to public policy, they may not be worth the paper they’re written on. All in all, some couples with pre-nuptials are just trading divorce litigation for contract litigation.
Thank God for small favors, but it’s not enough. Even with a pre-nuptial, your big ticket items may be as completely out of your control as ever. You can’t guarantee the custody of your children, and you can’t limit child support to their reasonable needs and to your reasonable ability to meet them. You can’t even guarantee that you’ll never have to pay alimony. With the unimpaired power to take your children away and to order you to pay alimony, a court can neutralize virtually any property advantage you bargained for in your pre-nuptial.
Still and all, the pre-nuptial may be your last, best chance to tailor your divorce. If you first try to reach an agreement after you marry, all bets are off: in some states, courts flat-out refuse to recognize post-nuptials, while in others, they have no clear rule, so your post-nuptial might just as well be Post Toasties.
When you meet the next love of your life, you’ll think you learned your lesson the first time. You’ll think you’re smarter and she’s nicer. You’ll think it can’t happen here, again. But the odds are even greater that your second marriage will end in divorce. The odds are it doesn’t pay for you to marry and have children again. An the odds are that you will.
In the next summary I will be covering the next chapter called “How to Marry (Again): If you Absolutely Must”