Prenuptial Agreements: ‘Til Death Do Us Part...Yea Right!

“If you ain’t no punk holla we want prenup. WE WANT PRENUP!, Yeah It's something that you need to have, ‘Cause when she leave yo ass she gone leave with half” ~Kanye West, “Gold Digger”

Introduction

I am an oddity amongst many of my female friends. I have always stated that I would not get married without a pre-nuptial agreement and upon hearing this, my female friends either look at me with mild amusement or sadness because I feel the need to have this piece of paper mar the institution of marriage. I don't believe that this is a function of my being pessimistic or cynical. I contend that pre-nuptial agreements are almost a necessity in the age of the divorce rate being over 50% and that these agreements do not display selfishness or the belief that the marriage is over before it starts.

The Celebrity Pre-nup

When Britney Spears married childhood friend Jason Alexander without the knowledge of her family and handlers, there was a mad rush to get the marriage annulled. Indeed, the marriage is one of the shortest celebrity marriages on record, having lasted only 55 hours. The primary reason behind the quickness of legal action to get the impromptu marriage annulled was the lack of a pre-nuptial agreement. As the former pop star’s handlers made clear, Britney stood to lose half of her net worth if the marriage, left in tack

• You meant "intact." Why didn't you catch this on proofread? Are you relying on spell-checking to do your proofreading?

without an agreement, failed.

• If that's what her handlers thought, they were morons who didn't know the phone number of a lawyer. I think they thought it was going to cost her a good deal of money. But you are a law student, and you should have checked. In fact, she stood to lose exactly 0% of her net worth on the day before her marriage. Why?

When people think of pre-nuptial agreements, they often think of celebrities. As soon as a celebrity announces their impending divorce from their spouse, celebrity gossip pundits immediately start speculating about the pre-nuptial agreement. Did both parties sign an agreement? Does so and so get money based on the years of marriage? Who gets the property in the Hamptons? However, having this agreement does not mean that one needs a multitude of properties or stocks or have money to rival the per movie rate of Tom and Denzel. The everyday person can and should make use of these agreements because everyone has their own personal assets and stakes in this union.

• If you don't get your pronouns to agree in number, or if you have agreement problems between subjects and verbs, people will think you are either illiterate or careless, neither of which is a good thing for a lawyer to be. You need to proofread carefully everything that leaves your hands.

Planning for Failure?

The idea that a pre-nuptial agreement is conceding that the marriage will eventually fail is prevalent amongst those that are against them. However, I feel that the idea that having an agreement in place in case the parties later divorce is not planning for failure as much as it is just an example of smart planning. Within Judaism, a type of pre-nup called ketubah has been a mainstay of marriage.

• Not quite. Ketubot are marriage contracts, not pre-nuptial agreements. It's true that they provide for a deferred bride price to be paid on the event of marital dissolution, but like nikah in Islamic law they are part of the method by which one marries, not an antecedent legal transaction. You would have been better off going less far afield, and pointing out that marital property settlements made before marriage have been a commonplace part of marriage in the common law tradition for 800 years, before Hollywood started confusing people into thinking that marriage was about "love."

The ketubah outlines the husband’s requirement to clothe, house, and support their spouse in case of divorce of death.

• No. Ketubot recite the husband's responsibilities to clothe, house, support, and fuck his wife while they are married, and to pay a fixed sum of money to her or her family when he dies or if he divorces her. Sexual relations after marriage are prohibited until the deal has been signed by two witnesses. A lovely deal, carefully inscribed as prettily as possible and presented to the newly-married Jewish wife as something to be displayed in her home.

Yet, the idea that this agreement means that one wants their marriage to fail is nowhere to be found within that religion. Like it or not, people change, and sometimes, not for the better. With the divorce rate being as high as it is, the odds are good that you will get a divorce. However, getting this agreement does not mean that you want your marriage to fail, it means that you understand that nothing is certain and that anything could happen.

• Anything except, for example, her divorcing him? Oh, yeah, right, she can't. Not without his permission. And if she tries, all her offspring are mamzerim, bastards not entitled to marry any Jewish person, forever. Not for one generation, but until the end of time. All her descendants, always. So get a ketubah--you go girl. Nothing like traditional Jewish marriage to make women safe and free.

A Tool to Screw over the “Poorer” Party

Another argument against the usage of a pre-nup is the implication that the proponent of the agreement is merely selfish and doesn’t embody the belief that a marriage is about combining assets as an extension of combining lives. Why must someone be selfish just because they wish to protect themselves? This is an age where many are choosing to get married later in life after they have established themselves professionally. It only makes sense that the person would at least think about the benefits of this agreement to protect what they have worked hard for. To be sure, I don’t advocate being unfair to the person you profess to love. A person shouldn’t be able to keep everything from their homemaker spouse. However, someone with suspect tendencies shouldn’t be able to automatically walk away with half of the earnings that they had played a minimal role in establishing. While it is true that these agreements are not always followed to the letter, at least there is some type of rubric or thought process on paper.

• Were you absent that day?

Conclusion

There is no doubt that the institution of marriage is an important one and should not be entered into lightly. Sure, the idea that marriage is ‘til death is the ideal. However, one would be have to be a bit naïve to think that their marriage will not fail, thus making them a causality

• You meant "casualty." Proofreading is not optional. Work that hasn't been proofread is not ready to submit.

of the high divorce rate. One does a disservice by not having a plan B for all situations. While marriage is (to some) ultimate expression of love and commitment, it is still a contractual agreement that some chose to breach. I don’t think that anyone would take on a partner in a new joint business venture without a contract in the event that the business folds or someone wants to walk away. For me, I liken a pre-nuptial agreement to insurance: I wouldn’t drive a car without auto-insurance, own a home without homeowners insurance, and I definitely won’t be getting married without a pre-nuptial agreement. Sure, one could say that a car and a home are merely material possessions and cannot be compared to a marriage. However, in the same way that one does not expect to have a car accident or a home fire is the same way that one may not expect their perfect fairytale marriage to fall apart. Better to be safe than 'sorry'.

• This essay, aside from its failings, is banal. Apart from Hollywood and the consumer-society wedding propagandists like Modern Bride, everyone above the mental age of fourteen is aware that marriage is an economic institution. People tend to approach their marriages as they approach other major economic decisions. Some are imprudent or heedless, including apparently some of your friends, and some aren't. Those who aren't make their arrangements against the background of marital property law, or are strongly encouraged by their less besotted families so to do. Where people had significant wealth to inherit, their marriages have traditionally almost always been accompanied by property settlements, unless they deliberately defied their families in order to marry.

• But the law of marital property has been adjusted since the United States became a divorcing society, in order to provide a fairer and more effective set of default rules in the event of dissolution unaccompanied by settlement. You might have explained what the rules are in New York, and in California, for example, and how they differ, in a paragraph. That would have helped to relate the essay a little more clearly to your actual life. But despite the premise that it's your life you're talking about, you don't show any knowledge of the rules that would apply to you. The essay could have been an opportunity to learn. Instead you offered a foreign legal institution, whose effective social bearing you don't comprehend, rather than figuring out your own legal situation. Not understanding Ms Spears' didn't particularly help you, either.

• So the route to improvement is to take up a real question about marital property, not dependent on an argument with silly people, like "what is the background law that would apply to me if I married, and how might I want to change it by pre-nuptial agreement"? Because you're almost certainly not going to marry into traditional Jewish life, you can escape the responsibility to decide whether ketubot are contracts of liberation or slavery and can concentrate on the law you came to law school to learn. And, please, don't ever submit something you haven't proofread again, for the rest of your life.