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If you think of prenuptial agreements as safety nets, check this out.
By Arianna Jeret — Written on Jan 22, 2019
Prenuptial agreements were once a plaything of the rich and famous. But as divorce becomes more normalized and there is greater public awareness of how financially devastating getting a divorce can be, "prenups" have increased in popularity.
What is a prenup?
By the most simple definition, "A prenuptial agreement ('prenup' for short) is a written contract created by two people before they are married. A prenup typically lists all of the property each person owns (as well as any debts) and specifies what each person's property rights will be after the marriage.
"In some states, a prenuptial agreement is known as an 'antenuptial agreement,' or in more modern terms, a 'premarital agreement.' Sometimes the word 'contract' is substituted for 'agreement,' as in 'prenuptial contract.' An agreement made during marriage, rather than before, is known as a 'postnuptial,' 'postmarital,' or 'marital' agreement."
Pre-nups have become a fairly common method sought by soon-to-be spouses as a way to protect the nest egg and ease the divorce process, should that become necessary.
Unfortunately, these arrangements can actually increase the risks already inherent in any marriage.
Here are 10 reasons why getting a prenup is more like to hurt, not help, both husbands and wives getting a divorce.
1. The number of prenups out there doesn't reflect the divorce rate, which is actually declining
According to Justin Wolfers, a University of Michigan economist, the divorce rate is declining: "About 70 percent of marriages that began in the 1990s reached their 15th wedding anniversary (excluding those in which a spouse died), up from about 65% of those that married in the 1970s and 1980s.
"Those who married in the 2000s are, so far, divorcing at even lower rates. If current trends continue, nearly two-thirds of marriages will never involve a divorce."
Enough said.
2. With or without a prenup, divorce remains likely to cause financial ruin if a couple heads to court
When a divorce leads to financial ruin, those consequences are not faced by one spouse only. The old myth of one party getting it all is, quite frankly, bullshit.
The only parties who generally do well financially in a litigated divorce are both spouses' attorneys, along with each spouse's forensic account, their child custody evaluator, their vocational expert ... you get the picture.
If you want an inexpensive and efficient divorce, skip the court system and find a mediator who can walk you both through the process together, the same way you walked back up the aisle together after you took your vows.
3. Prenups not only fail to prevent a long, drawn out legal battle, they add fuel to the fire
This may come as a surprise, but prenups don't come with stamped with a UPC code, whereby you take it into a court clerk to have it scanned and exchanged for a complete divorce judgment (although, that is an ah-mazing idea and if any entrepreneurs are reading this — call me!)
Even with a prenup, one person still needs to file a petition for dissolution of the marriage, the other still needs to file a response, and both need to agree on how to proceed.
If someone feels the prenup is now invalid, you then get to add on attorney fees and the accompanying bells and whistles to contend/defend the prenup before the divorce can even begin!
4. Prenups make two stressful situations far more stressful
Despite the fairytale expectations of youth, the most stressful period they'll ever experience is during their engagement.
Between mismatched family traditions, dramatic paring down of invitation lists, and in-law turf wars, do you really need to add an emotionally charged and expensive contract negotiation into the mix?
As for the possibility that a divorce will be automatically less stressful with a prenup in place, please re-read #3 on this list. Nope.
5. With or without a prenup, going to court is always a gamble
I have yet to hear a prenup story in which at least one party didn't feel pressured to comply. In fact, that is one of the many causes of overturned prenups.
When you and I casually refer to something as "voluntary," that word does not have the same force and effect it does in a court of law. And, the legal definition of anything may vary state to state.
Attorney Christopher C. Melcher explains that California prenups from 2002 on "are deemed to have been executed involuntarily unless the court finds that the party had independent legal counsel (or properly waived that right), waited at least seven days before signing the agreement, had legal capacity to enter into the agreement, and did not act under fraud, duress, or undue influence. (Fam. C. § 1615, subd. (c).) Therefore, the party seeking to enforce the agreement bears the burden to prove all of these elements or the agreement will be invalidated."
That is a lot of i-dotting and t-crossing in order get a judge to agree that your prenup stands. And this is one of the reasons so many attorneys won't even get involved with prenups — out of fear of future malpractice claims.
6. Prenups further victimize men and women in abusive relationships
When an abusive marriage ends, it is rarely a sudden parting of the ways. If one party does feel blind-sided, it is more often because the victim suddenly saw a way out and grabbed it than because an abuser just upped and walked away.
The most dangerous time for a victim of domestic abuse is immediately following their departure.
According to the Domestic Violence Awareness Guide created by the Oklahoma Department of Human Services, Adult and Family Services, separation "can be the most dangerous time for the victim due to the batterer’s anticipation of his ultimate loss of control. Across the U.S., 75 percent of domestic violence-related deaths occur after a victim takes steps to separate from her abuser."
That abuse may link to finances, but the bigger risks lies in potential acts of violence, manipulation, distortion campaigns, and various other favorite abusive techniques that a prenup could never account for.
7. Prenups do nothing at all to ensure either person is getting married for the "right" reasons
Let's say that Jenny Golddigger's prenup with Johnny Billionz stipulates that if they divorce she will only be entitled to $10 million out of his $2 billion empire. Is anyone going to say that Jenny is not somehow still financially benefiting from the marriage?
In addition, every one of the 50 states prohibits prenups from including agreements about child support issues. Child support from Johnny Billionz is going to cover a lot more than just Cheerios.
More importantly, money isn’t the only "wrong" reason people get married. A prenup cannot ensure that one person isn't marrying just to have a beard, or because this person just seems more stable than any of the men/women who came before, or because it is "time" to have kids and this person is willing.
8. Prenups put pressure on everyone and create disincentives for honesty within marriage
Establishing a no-fault divorce means that everyone who ever gets married has an "out." That we know.
Going back to Jenny and Johnny, let's say Jenny knows that if they divorce she will live with only a fraction of the material comfort she has now. Is she going to risk telling Johnny how upset she is with the way he has been ignoring her opinions lately?
Let's say Johnny knows there is an infidelity clause and if he has an affair, her $10 million jumps to $200 million. Is he going to confess that he has been struggling with intimacy and strayed, and now wants to work with her to repair the damage in couple's counseling?
I'm thinking ... highly unlikely.
9. Prenups are totally impractical
Marriage has never been a fairy tale, and if you expected differently we have a lot more to discuss than just prenups.
Why spend time, money and emotionally agony going through a process that ultimately protects so little and sets everyone on edge?
10. Prenups just aren't smart
If you haven't picked up on this yet, there's really no good reason to get a prenup. If you want a transparent and responsible future with your spouse, sit down and start talking.
Plan a meeting with a relationship coach, a Collaborative Marriage Planning professional or a marriage counselor and start working together proactively to establish healthy communication patterns that will last you a lifetime without ever having to go through the pain of divorce at all.
Deputy Editor Arianna Jeret, MA/MSW, is a former family law mediator and recognized expert on love, relationships and divorce whose work has been featured in Cosmopolitan, The Huffington Post, Yahoo, MSN, Fox News, Bustle, Parents and more.Find her on Twitter and Instagram for more.