Many factors play a role in the ruin of a marriage including infidelity, lies, boredom, lack of common goals, lack of communication, mental illnesses and well, the list can go on for eternity however, the biggest factor of all is lack of protection. There are several advantages to the requirement of a prenuptial agreement before marriage. First we are going to look at the disadvantages of not having one.
Without the legal protection a prenuptial agreement can provide the marriage is doomed to fail from the beginning. Why; because marriage is an emotional, and in some situations a holy, contract not bound or protected by a legal one. Marriage is only a legal contract in the fact that partners who are married can benefit from many state and federal benefits allotted only to married couples. During the marriage all monies, assets and responsibilities are typically considered as equally shared. But in reality, that is the extent to the legal bounds of a marriage. The verbal part of the contract includes until death to we part – not until divorce do we part. Yet, anyone anywhere can get a divorce at the drop of a hat. In all 50 of the United States a spouse can opt to use a no-fault argument for a divorce; in 15 states it is the only option. No state will deny a divorce. Many state laws provide for a 50-50 split of assets and debts however, the process to get everything completed can be financially and emotionally draining.
Ok, so far this doesn’t sound unreasonable; why stay in an unhappy situation, so what’s up? In many business contracts there are stipulations for what happens in the case of dissolution of the contract. This protects each party from harm done by an unwanted and abrupt end to the contract. It also protects each party from the emotional state of mind of the party who wants out. Without a prenuptial agreement there is no such protection in the dissolution of a marriage. It is left to a judge and individual state laws to decide who gets what and in most cases the first one who files has the upper hand.
Let us talk about the idea that the first one to file for a divorce usually has the upper hand. In the state of Kansas a spouse can go before a judge and ask for whatever he or she wants and it is automatically granted through a temporary order and a date is set that the other spouse can attempt to modify the temporary orders. This may vary from state to state but for discussion sake we will use the state of Kansas as an example. If someone is planning to get a divorce they already have the upper hand as they can easily clean out joint bank accounts and their own personal accounts then put a freeze on the other person’s account so they have no access to money. Not only can they take all the money available to them and freeze out access to other money they can order the other person to be removed from the home within 24 hours. So, without the protection a prenuptial agreement can provide, within 24 hours with no warning whatsoever a person can become destitute, homeless and denied access to his or her children. That is unreasonable harsh punishment from someone who supposedly had an emotional and/or holy contract with you.
Now that it is clear as to what the disadvantages are to not having a prenuptial agreement lets look at the advantages to having one. If laws required couples to sort out the basic details of a divorce before they got married and allowed for individuals to have access to money in their individual accounts during the divorce process the whole process would become less stressful and the children would not have to suffer as much. Grant it there is no way to know what sort of assets or debt we will have acquired 5 or even 20 years down the road but we don’t generally go into a relationship not expecting it to grow and acquire these things. It is not unreasonable to plan ahead and make a plan B that should include mediation and/or counseling. Let’s face it – if couples cannot come to reasonable agreements when they are still “in love” they surely won’t be able to after their marriage is in ruins.
The mere process of coming to an agreement will tell a lot about the compatibility of the two proposing marriage. If issues arise the couple can determine if the joining will be a positive one or not. If necessary they can seek couples counseling to work on issues before they become a real problem.
Not only would a prenuptial agreement ease the process of divorce but also, if people already knew what they were going to lose in case of divorce they wouldn’t be so afraid of it and eager to be the first one to file. Having a prenuptial agreement in place would allow them to be able to concentrate more on efforts to fix the problems in their marriage and maybe more marriages could be saved.
Prenuptials could also be amended prior to any life altering events such as buying a house or having a baby. If a couple cannot agree to provisions for what happens if the marriage ends they likely are not going to agree on many other factors involved in owning a home or raising a child. These issues should be discussed before getting married.
Marriages are always going to have problems in one form or another because we are human and as humans we are not infallible. The problem is that it has become common knowledge that whoever files for divorce first has the upper hand if a prenuptial agreement has not been signed. This can be very damaging to a marriage that is fixable but because one or both parties are afraid of what might happen and their friends are advising them to file first so the don’t get screwed it becomes a disaster in the making. Fear is a powerful motivator to go either way but when those around you are adding fuel to the fire by encouraging you or your partner to leave then there is little hope for a positive outcome.
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