Prenuptial agreement pros and cons?

August 28, 2004 9:17 PM

Prenuptial agreements. Got one? Know someone that does - or didn't, and wishes they did? Looking for personal experiences, good and bad (purely out of curiousity, of course). Are they crucial in these modern times...or just unbearably unromantic?
posted by gottabefunky to human relations (17 comments total)

I'm in Canada, and the only person I know who has considered a prenuptial is a friend that's in line to inherit a few million from family, and doesn't want her personal life to be a liability to family investments.

Personally, I'd be offended if my partner asked for one, and I wouldn't insult my partner by suggesting one. Mind you, I know more than a few Americans who have been taken for 50% by angry ex-husbands/wives. If I lived in the US, I might feel differently.
posted by Jairus at 9:58 PM on August 28, 2004

I don't have one, but I do feel that they're definitely in the "can't hurt/might help" category. Anyone who'd be offended by one is likely someone you shouldn't hitch yourself to, in my opinion. Peace of mind should not be insulting.

Take this as you will, but Donald Trump says that everyone should have one, regardless of how much or how little money they have.
posted by biscotti at 10:36 PM on August 28, 2004

biscotti, why would a prenup give you peace of mind? I'm honestly curious. I've discussed this with friends/family/coworkers over the years, and literally everyone I've spoken with (with the exception of the aformentioned friend) feels like a prenuptial would be insulting.

Also, what country do you live in?
posted by Jairus at 10:40 PM on August 28, 2004

Prenuptial agreements may be unromantic, but they have a lot more appeal when you've already been married once. If I get married again I will probably insist on one.

Also, you don't have to be American to benefit from one. In my country, and I imagine in most countries that have modern matrimonial property laws, there is a default devision of property in case of divorce which you have to contract out of if you don't want it to apply.
posted by i_am_joe's_spleen at 11:43 PM on August 28, 2004

Where I live, divorce works as such: The increase in value of a couple's assets during marriage is divided equally between the parties.

This seems pretty fair to me, and I guess that's why I find the idea of a prenuptial to be vaguely insulting. Why shouldn't the assets two people build together be split between those people, if they decide to separate?

Again, though, if the laws were "person with larger assets gives 50% of assets to person with less assets", I might feel differently on the issue.
posted by Jairus at 12:00 AM on August 29, 2004

I had a very very basic prenup [in the US] that said "I promise I won't take your shit" or something similar. On the one hand, it was a joke, on the other hand, the meaning was crystal clear. Some US states are what are called "community property" states which means that anything that one person acquires while in the marriage belong equally to both partners, not just to the person who acquires the property/money/equity. In most US states, anything one person acquires during the marriage is thought to belong to them in the absence of any other agreement to hold property jointly, this is called the "common law" property system.

A reason for a prenup might be in a relationship where one person does more of the tangible property-acquisition [say, by having the major wage-earning job] and the other contributes in more non-quantitative means to the family [by raising the kids, maintaining the household, whatever]. If you're in a common law state and you don't have some sort of prenup or other written agreement, the wage-earner can argue that all the money they earned while in the relationship belongs to them. A court might have a different opinion, but then again they might not. A lot of people of my parents' era -- specifically women -- often got a real eye-opening introduction to the court system when they realized that even though they had assumed that all the assets of their relationship were common property [the house, the cars, the bank account], legally this wasn't necessarily so. Put another way, my parents' divorce would have gone much more smoothly and resulted in much less animosity if they had had certain things spelled out beforehand.

My feeling on the prenups is that -- though I totally agree they're unromantic as hell -- in many cases, for people with no major assets, they mostly just put in writing the way decent people who are planning to plan a life together should behave but, realistically, often don't. I know people don't like to enter into a marriage thinking about divorce, but while divorce isn't inevitable, it's not impossible. Doing a little bit of planning early can make the breakup of the relationship not turn into a pissing match about property.
posted by jessamyn at 6:24 AM on August 29, 2004

Jairus: I'm Canadian,but I live in the US. And I think they give peace of mind because I've known more than one couple who split for whatever reason, and one or both members of the couples, out of spite, anger, hurt, whatever, decided to act like total assholes to each other, including insisting on the splitting of very personally valuable (to the other person), but monetarily close to worthless, items simply to hurt the other person. In Canada, the legal situation used to be comparable to the one in the US (as I understand it, NOW the law states the nobody is entitled to anything, but rather has to prove that they are, rather than being an automatic 50/50 split).

I suspect that people find the idea insulting because everyone enters a relationship with good intentions, they don't want it to fail, and if it does, they can't imagine themselves being spiteful or inhuman to the other person. In reality, sometimes the people you'd least expect to be spiteful treat people hideously when things don't go well.

As I said, I don't have one and didn't think to discuss one with my husband, but I certainly wouldn't have been insulted by discussing it.

And what jessamyn said.
posted by biscotti at 7:39 AM on August 29, 2004

Go with the Massey Prenup. They teach an entire class on it at Harvard Law - it's unbreakable!
posted by UKnowForKids at 8:22 AM on August 29, 2004

I'm an editor and have worked in two legal publishing houses. I have read many judgments of divorce cases. I read one case where a man who had supported his waitress wife for their entire marriage (whatever she earned she spent on herself) was ordered to give his ex-wife half the value of the house he had owned before they got married.

I'm not saying reading this sort of thing made me resolve to get a prenup should I ever get married, but it did give me pause. I own my own home, and I intend to make sure I never have to hand half of its value over to anyone who didn't earn it.
posted by orange swan at 10:50 AM on August 29, 2004

Is it insulting that you're supposed to get car insurance? You're not going to get in an accident, right? You're a good driver.

Is it insulting when you start a new job and they want you to agree to not steal stuff, to not reveal trade secrets, etc? YOU wouldn't do that, would you? But people do.

Is it insulting when you sign, say, a record contract that lays out who gets what, and what happens to the money if you and the label split up in the future?

Why is it so hard to imagine that your marraige might fail?

The thing is, the way you feel about someone when you get married includes the assumption you'll never feel different. Make the prenup fair for god's sake, then it's a lot less insulting. I won't screw you over, you won't screw you over. Think of it as protecting your future ex-wife from your future-you, just in case, as well as protecting your future you from her (if you're a girlie that would be ex-husband of course, not trying to imply anything)

Of course, I don't have a prenup. it'd never happen to us ;) Well, more like, we didn't have much in way of assets to protect. I guess we could in the future but the now-me things that whatever we acquire together in the future belongs to both of us. The future-me might regret that, who knows?

Hmm, you know what? My parents got divorced. No one got screwed in the process so I'm not harboring any bitterness regarding one of my parents getting screwed, but I recognize quite clearly that two people can love each other very much for years and years and years and then somehow it all falls apart. Actually, been through it myself though we were not married, but we had lived together for several years and dated for more than 6 years. Until we fell apart I guess I never really understood how it is that such things happen. Very gradually, usually, or precipitated by a very large event.
posted by RustyBrooks at 10:59 AM on August 29, 2004

Heh, intolerable misquote! The Massey prenup has never been penetrated. (Man, I loved that movie.)

Somehow, in the middle of all the scheming in that flick, they really did manage to make it seem like signing a prenup is romantic, because it's incontrovertible proof that the marriage is a union of people, not an exchange of assets.
posted by NortonDC at 6:57 PM on August 29, 2004

Actually, every Jewish marriage has a pre-nup: the ketubah. Most people think that it's is a religious version of the civil marriage certificate, but it ain't; it's actually a 1,000+ year old version of a pre-nup, intended to protect the wife's rights within marriage, to protect any pre-marriage property she may own, and to grant her a fair alimony or inheritance if the marriage breaks up, either by divorce or his death.* The document itself, once signed and witnesed, is also her property. And modern versions are gender-egalitarian.

Of course, ketubot are only valid under religious law, which means about bupkis these days, unless you're both Orthodox and live in Israel. Still, they're awfully pretty. Ours hangs on our bedroom wall.

So, there's a big datapoint for you on the whole pre-nup debate. Personally, I don't think they're necessary unless you or your spouse have children from a previous marriage, in which case they're crucial, for the sake of protecting the children's future interests.

* Part of the text requires the husband to care for his wife, but besides food and shelter and treating her well and all that, it also includes the obligation for him to satisfy her sexually. Now, that's a pre-nup.
posted by Asparagirl at 9:53 PM on August 29, 2004

I should probably point out that we, and most other people who hang ketubot on our walls, do so because we play along with the misconception that it's our marriage certificate, and a lovely one with calligraphy at that, not because we choose to remember that technically speaking it's a pre-nup. Because purposely hanging a pre-nup on your bedroom wall would just be weird and ominous. So uh, yeah, don't do that.
posted by Asparagirl at 10:02 PM on August 29, 2004

I know a slightly eccentric, crotchety old lawyer who practices family law. At some point during his practice, he moved his office, and going through his files to see what could go to archives, realized that something like 90% (or so he said) of the clients for whom he had drawn up pre-nups were divorced within five years.

In classic crotchety old dude style, he started refusing to do any more pre-nups, telling people "if you are getting married and already thinking about getting divorced, you need counseling instead of a pre-nup."
posted by ambrosia at 10:58 PM on August 29, 2004

I got engaged last night. If either of us asked for a pre-nup, I guaran-damn-tee you that the other would call it off. It's talking out of both sides of your mouth to promise to spend your lives together while simultaneously establishing the plan for divorce.
posted by waldo at 11:00 AM on August 30, 2004

I used to harbor the "I would never agree to a pre-nup" attitude for whatever reasons one has such attitudes. (Careful, Waldo: marriage is something to build upon, not just a promise.) Then, nine years ago, before marrying, I signed one. I won't enter into the details but when faced with a fight about it now or later, I looked at what was smart, reasonable and fair and knew that my true spirit would come through in light of a divorce: my stubborn independent side would rise to the occasion. Not a kept man now, don't want to be one ever.
posted by Dick Paris at 1:24 PM on August 30, 2004

My (now ex-, so go figure) intended was deep in debt when we married. We saw a very smart lawyer who talked to us about the legal structure of marriage in our state. It was really interesting and useful.

We made a written statement of assets prior to marriage, and had a low-key prenup that expired after 5 years. I sold my business and we bought a house. We wrote up about 2 paragraphs saying that the money for the downpayment came from my business assets and that if we ever got divorced, we'd recognize that.

That coffee-stained piece of paper is why I still have the house, and having the house staved off some bad times, and helped keep the kid in shoes.

If nothing else, spend a little time talking about money and expectations before the wedding. Money is a huge source of conflict in marriages.
posted by theora55 at 11:08 AM on August 31, 2004