Divorce: Prenuptial Agreements by Sam Margulies

Author:Sam Margulies [Margulies, Sam]
Language: eng
Format: azw3
Publisher: Simply Magazine
Published: 2014-10-16T04:00:00+00:00

6. Chapter 5: Anticipating Divorce While Getting Married

Although establishing what happens when one spouse dies is the traditional purpose of prenuptial agreements, the most frequent purpose today is to establish in advance what will happen in the event of a divorce. Such a concern is not unrealistic, given a divorce rate of 50% overall and closer to 60% for second marriages and marriages among the “X” generation. One stands a better chance of winning in Las Vegas than avoiding divorce throughout a life time. So it is not unreasonable that some people will try to reduce the risks of divorce by deciding certain issues in advance. After all, negotiating about the forthcoming marriage has occurred in traditional societies for thousands of years. Arranged marriages have been commonplace throughout history and have usually been the subject of intense negotiations by the familial representatives of the would-be spouses.

What is new in the modern prenuptial negotiation is an attempt to negotiate an unromantic contract of a relationship in the face of modern notions of romantic love. Although romantic love defies precise definition, the images associated with the concept include continuing dedication and passion, unlimited commitment, complete trust, exclusivity and intimate friendship. Romantic love suggests loving with abandon, risking all, and a complete sharing of two lives. What it does not contemplate is holding back, limited commitment, separation of interests, and a refusal to risk or share.

Yet these are precisely the objectives of the prenuptial agreement. The premises of prenuptial negotiations are logically contradictory to the premises of modern marriage. The premise of marriage is permanence—till death do us part. The premise of the prenuptial agreement is impermanence—till the judge do us part. The premise of marriage is unlimited commitment; the premise of the prenuptial agreement is contingent commitment—as long as we feel like it. The premise of marriage is sharing and a merger of interests; the premise of a prenuptial agreement is a separation of interests. The premise of marriage is mutual vulnerability and equal power; the premise of the prenuptial agreement is unequal vulnerability and unequal power. The premise of a marriage is a merger; the premise of a prenuptial agreement is a strategic alliance. It is this set of contradictions that makes the negotiation of prenuptial agreements so hazardous to the relationship.

This type of agreement is invariably sought by the economically stronger of the two parties, seeking to protect his/her (most often his) assets if the marriage fails. On occasion one sees a prenuptial agreement between two economic equals who have mutual concerns about sharing money that they seek to resolve by formally stating their financial expectations of each other. But the most frequent use of prenuptial agreements occurs when one partner, typically male, is significantly wealthier and has much higher income than the other. If the marriage fails, the law provides that economic issues such as alimony and distribution of property must be negotiated to resolution or tried before a judge who decides who gets what. An elaborate body of law has developed in an attempt, however clumsy, to do justice at the end of a marriage.

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