51% of all marriages end in the death of one or both spouses. The remaining 49% end in divorce. Married couples buy life insurance, draft wills and engage in estate planning to help prepare each other for the 51% likelihood that death will end their marriage. No one thinks this is ‘unromantic’ or ‘pessimistic’. Instead, people see it as an important part of being prudent and caring for each other.
What then makes preparing for the other possibility, divorce, so wrong?
In my opinion, preparing for the other possible outcome is rejected irrationally by most couples based upon the social expectation of a traditional Christian marriage. I do not contend that this is based upon most couples actually being traditionally Christian in their religious views (we live in a VERY diverse society) nor do I contend that most couples actually intend to engage in what is now called a ‘covenant marriage‘; rather I believe our attitudes about marriage are so shaped by movies, magazines and hyper-romanticization that we don’t truly focus on the realities of our relationships until long after the wedding vows are made.
This tends to make marriages more difficult and divorces more expensive. A pre-nuptial agreement can help make a marriage easier to manage and less painful to end.
First, how can it make a marriage easier to manage? Understand that in California, all you are obligating yourself to when you marry someone is to give them mutual respect, fidelity and support. Actual marriage tends to revolve around agreements on work, residence, sex, children, lifestyle and values. California’s law has moved from offering a one-size-fits-all set of obligations based on strict Christian religious obligations to a one-size-fits-all set of amorphous and unenforceable obligations. The practice of ‘mutual respect, fidelity and support’ has no touchstones of performance, no specific proof of acceptability and is absolutely unenforceable. That’s ok, since ending the marriage merely requires the expression of another amorphous idea, ‘irreconcilable differences’. These two sets of legal nonsense boil down to one reality: marriage is the state of consenting to be identified as married and that state ends when either party no longer wishes to so consent.
Most likely, no couple ever existing has had that as the only obligation intended when they marry. Instead, most every couple has a long list of obligations they intend to see performed through the marriage. The most common of those relate to working, child-rearing, communication, and resource-pooling. Oftentimes couples share a set of values and religious practices and they would like to see those values and practices reflected in their marriage. California law takes no part in making those a part of your marriage. Through a prenuptial agreement though, you can make it a part of your marriage.
(Sidenote: I am not contending that California will ENFORCE those agreements or penalize a spouse who doesn’t perform. It won’t. Instead, I am contending that if you discuss it with your spouse before you marry, write it down and promise each other that you will live according to those commitments, your odds of having those commitments honored during your marriage improve substantially.)
California Law permits a prenuptial agreement to cover the following topics:
CA FAM Code Sec. 1612. (a) Parties to a premarital agreement may contract with respect to all of the following:
- The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located.
- The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property.
- The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event.
- The making of a will, trust, or other arrangement to carry out the provisions of the agreement.
- The ownership rights in and disposition of the death benefit from a life insurance policy.
- The choice of law governing the construction of the agreement.
- Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
You will notice that the only topic invoked by divorce is the ‘disposition of property upon marital dissolution’. Otherwise, the provisions of a prenuptial agreement are focused on providing a couple a framework for their marriage DURING the marriage.
Besides providing yourself a clearer understanding with your spouse on what your marriage means, why would you want to do a prenuptial agreement? Quite simply, because it will work to inhibit the growth of irreconcilable differences. After fifty years of ‘no fault’ divorce, the facts are clear about what causes divorce today.
Top Two Causes of Divorce in the First Five Years of Marriage:
1. Lack of Understanding at the Outset about Expectations and Resources.
2. Disagreement over Finances or Stress Due to Financial Misunderstanding.
Doing a prenuptial agreement eliminates the #1 cause of divorce in the first five years of marriage by insuring the couple has a shared understanding of what their marriage will be about. It also acts as a pretty good cure for the #2 cause since the couple will discuss, in detail, their finances and financial values in preparing a prenuptial agreement. In my fifteen years of doing divorce work, I have seen these two causes provide the overwhelming majority of reasons for divorce in the first five years of marriage. (Not adultery, domestic violence or addiction; those three cause substantial marital stress but tend not to result in a dissolution, at least not initially.) For marriages that end after the first five years, we realize the more commonly understood benefit of a prenuptial agreement: reduced legal costs and conflict.
When you have a dissolution proceeding, California WILL act to see the terms of a prenuptial agreement enforced if the agreement is fundamentally fair and provides guidance as to how the parties wanted to have their marital estate divided when they married. This is the conventional wisdom on prenuptial agreements and it is pretty accurate. Most of the cases I have seen involving a dissolution with a prenuptial agreement cost 80% less than an equivalent dissolution and are resolved within the mandatory six-month pendency period 98% of the time (versus about 65% of the time in non-pre-nuptial agreement dissolutions of marriages lasting more than five years).
Finally, I want to offer some guidance as to how to make a prenuptial agreement work for you in your marriage and, if you are one of the unlucky 49% whose marriage doesn’t end in death, after.
The Big Three For a Prenuptial Agreement that Works:
- Fundamental Fairness—No unconscionable terms, at least a seven day waiting period between the date the agreement was offered and the date it was signed, full disclosure of all the terms and their impact and the opportunity to have independent counsel for each party.
- Complete Identification of What Is and Is Not Separate Property both Now and Later.
- Limit, don’t eliminate, the obligation to pay spousal support; the California courts look much more favorably on limitations rather than waivers.
Let the Prenuptial Agreement show that you agree what is fair while you both love each other and see this process as a way of taking care of each other. The Bromund Law Group is happy to offer free prenuptial consultations and will prepare a prenuptial agreement for a flat fee of $250.
As always, this blog post does not constitute specific legal advice for any case and it does not form an attorney-client relationship between the Bromund Law Group, its attorneys or associates, and any person. Please contact us at 805.650.1100 for your free consultation (in either English or Spanish) and we will see if we can help you. We are always happy to receive your referrals or comments.