Friday, April 2, 2010

What Divorce Law is Doing to Marriage Part 46

This chapter is called “How to Write It Your Way: Pre-Nuptial Agreements”. It is a four page chapter and I will cover this chapter in two summaries.

More from the words of Jed Abraham

Your divorce was a killer. You thought the men who went through it before you probably did something to deserve it. You thought it couldn’t happen it couldn’t happen here.

Now you know. Now you don’t want it to happen here the next time. If there is a next time.

If there is a next time, you want an agreement ahead of time. You want an agreement about your children, your income, and your property. You don’t want the law setting the rules for you. You want to set your own rules.


Sure, you can get an agreement. It’s called a pre-nuptial agreement. Before you marry, you and your fiancée can agree about how your property should be treated in divorce. You can agree that equitable distribution shouldn’t apply. You can agree that hers is hers and yours is yours. But that’s about it. Many states won’t enforce a pre-nuptial agreement that waives alimony. If you’re lucky and you live in a state that will allow you to limit your alimony exposure to some “reasonable” amount, so much the better. However, nowhere will a court enforce a pre-nuptial agreement about custody. And nowhere will a court cede its power to set child support.

Pre-nuptials are great if you’re old, rich and have no minor children. If you’re like the rest of us, pre-nuptials are better than nothing.

It used to be worse

It used to be that the only kind of pre-nuptials the courts would enforce involved inheritance rights. Agreements that predetermined the outcome of a divorce were considered abhorrent to the public policy of encouraging marriage and discouraging divorce. A good pre-nuptial agreement, the courts fretted, would be a goad to getting out of a bad marriage.

The courts were especially loath to allow a husband to contract his way out of his lifelong duty to support his wife. They feared the result would be rampant immorality and a line of divorcees queued up at the welfare office. They did not think women were competent to bargain a fair deal from their beloveds.

At the core of the court’s reluctance was their sense that prenuptials just don’t give them no respect. Over the course of centuries, the finest legal minds had fashioned an exquisite system of marriage and divorce, and here come two ingrates who say thanks but no thanks.
All this began to change with the coeval appearances of women’s liberation, no-fault divorce, and equitable distribution. Women demanded equal treatment. As they showed their pretence to negotiate commercial contracts, even chivalrous courts could no longer deny the corollary that they could also bargain competently for pre-nuptial contracts. An as the divorce rate rose and the marriage rate fell off, some courts mused maybe some people would actually consider the ability to bypass equitable distribution not as an inducement to divorce, but to marry.

More on “How to Write it Your Way: Pre-Nuptial Agreements on next summary