This guest post is offered by Regent Law 2L and current Family Law student Joseph Addink:
The phrase “prenuptial agreement” often carries a stigma. Many people see it as a way for a wealthy spouse to protect his or her assets from the potential marriage partner should they divorce. Further, if a person wants a prenuptial agreement, it is possible that he or she really seems to not expect the marriage to work out. Or worse, that individual might already suspect the soon-to-be spouse has a hidden agenda to using the marriage as a way to gain wealth upon divorce (which may be suspected as the real reason behind the soon-to-be spouse’s interest in marriage). The merits to these suspicions may or may not be true, however, that does not mean a prenuptial agreement has no value.
Perhaps, however, in the culture of today they should be common place, if not a requirement of marriage as they can work to protect both parties from unforeseen circumstances, and even work to protect the marriage itself.
There are three common requirements to make a prenuptial valid in most states today. First, the agreement must be in writing. Secondly, there must be a disclosure of all material considerations, including full financial disclosure by the party seeking the prenuptial agreement, and in most jurisdictions by the other party as well. Lastly, the agreement must be voluntary; meaning not made under duress or coercion.
The agreement must also not be unconscionable or contrary to public policy. The standards for what is or is not unconscionable vary from state to state based on how much that state adheres to the principle of freedom to contract. The public policy considerations include aspects like the welfare of the children that result from the marriage and the likelihood that a dependent spouse would require state assistance after the divorce.
Currently, only about 5% of divorces have a prenuptial agreement in place. There does seem to be a perception that the use of prenuptials is increasing, however, what if it were mandatory?
I think Christians should embrace prenuptial agreements, but not for the reasons mentioned earlier. Many attorneys recommend prenuptial agreements because a large percentage of marriages will end in divorce. I believe Christians should encourage and use them as a way to counter the cultural view that marriage is something you try and if it doesn’t work out you can get divorced. The process itself, however, can help couples to find any unforeseen difficulties prior to marriage, and even work to set a more secure foundation for the marriage.
During the process of creating a prenuptial agreement the parties must disclose all material considerations. This includes finances, but it also includes plans for children, aspects regarding past marriages, health issues (including STDs), to name a few. One would hope that this type of disclosure would be done during the dating process, however, if it is not done during the dating process having a mechanism in place to ensure it is done would only strengthen the marriage. After all, if someone has hidden something material to the marriage, it does not bode well for the marriage later.
In addition, during the prenuptial agreement, the parties make decisions on what is or is not considered to be “marital property” (which is everything gained during the marriage and would be divided equally in divorce) and what is “separate property” (which goes to the original individual owner unless comingled). This process, while it focuses on divorce, forces the couple to think about what would happen if they end up divorced. It would force them to realize that they are entering into an agreement that will cause EVERYTHING they acquire from that point on to be divided. Some questions that will inevitably occur are: Is it worth the risk of losing half of what I acquire from now on to be married? Is getting married worth the risk of having to pay spousal support if we divorce? Do I love this person enough to take the chance that the property I own now could become marital property and I will lose half of it if we divorce? These questions may seem harsh, especially to a couple in love who believe life will be happily ever after. However, if the couple is not willing to say, “Yes! It is worth the risk!” then I would submit they are not ready to make the commitment before God and others that they will love each other for better or worse for the rest of their lives.
In addition, prenuptials also have the ability to aid in the division of assets should a divorce occur. Often the biggest losers in a divorce action are the children. This is a direct result of the self-centered focus of the parents over who is going to get what material possessions. A prenuptial agreement can reduce the amount of fighting over material possessions that would occur during a divorce. While it certainly is not going to eliminate the self-centered focus that often leaves the children as secondary considerations, anything that can help should be done.
From a societal perspective, prenuptials can also reduce the amount of time and financial costs on our already over-burdened justice system.
I submit that prenuptials should be mandatory for all soon-to-be-married couples because the result would be stronger marriages initially, possibly reducing the number of divorces, and if divorce should occur, it could reduce the burden on our court system and on our children. The only casualties of such a policy might be the engagements that do not survive the prenuptial agreement process, and I would submit that the breakup of those engagements is not necessarily a bad thing.
I really appreciate the pragmatism emphasized in this article. However, I believe that further qualifying considerations are necessary. The stigma behind prenuptial agreements is rooted in the logic that contingency plans make divorce seem like an attractive option when the struggles of marriage inevitably arise.
ReplyDeleteOn one hand, the stigma is narrowly misguided. There are many seasons of life and circumstances that a couple may find themselves in where a clear divisions of assets would be necessary and beneficial. After all, there are Biblical grounds for divorce. See Matthew 19. Additionally, prenuptial agreements may provide clarity and security for couples who own businesses and want to avoid related debt and liability that could arise.
On the other hand, there is a clear call for married couples to be of "one flesh", Mark 10:8, and a contractual division of assets does appear to fly in the face of the instruction. The "one flesh" command in Mark 10:8 is both practical and symbolic. Practically, the level of commitment involved in being in a "one flesh" covenant spiritually, physically, and financially lends itself to the degree of sustained commitment necessary to persevere as a married couple without divorce. I do not mean to come across overly idealistic. I am painfully aware of the struggles of sin and imperfection that challenge married couples every day, but I also believe that God is faithful to sustain the institution of marriage that he so carefully designed in Genesis 2. It is only fitting that we walk in faith and submit to God's providence free from contractual schemes that assert our self-sufficiency over God. Moreover, the marriage covenant signifies something greater. Christ's love for the church. When Christ came and died there was no contingency plan, catch net, or contractual safeguard. He humbled himself in perfect submission and laid down his life for the church. That relational model is transferred to married couples in Ephesians 5, as married couples are called to exercise a similar level of commitment. My concern is that contractual safeguards, such as prenuptial agreements, chip away at that commitment and distort the display of Christs love for his church.
Finally, many of the benefits of prenuptial agreements outlined above can be found in premarital counseling programs and the church. Premarital counseling is becoming more popular in religious and secular circles. It is a valuable opportunity for a couple to sit down prior to exchanging vows and walk through the necessary disclosures, challenging questions, and spiritual implications of the covenant that they are about to make. Admittedly, if things go wrong in the marriage and the couple decides to divorce, premarital counseling does not save your assets. However, it may provide the tools and community necessary for the couple to work through issues early and often and, Lord willing, avoid divorce in the first place. Ultimately, I can understand and appreciate the pragmatic benefits highlighted in this article, but I do believe that there are deeper, faith based concerns that lead me to push back against the contractual security of prenuptial agreements.
As with the comment above, I was skeptical of the premise that Christians should embrace prenuptial agreements when I began reading this article. However, the author makes one point that I found particularly persuasive. In mandating a disclosure of assets, debts, and the necessaries of marriage, a prenuptial agreement in fact deepens the relationship and encouraging open communication about some very hard topics - before the marriage begins. I agree that our society has removed much of the formality of engagement, encouraging young people to follow their whims in something that should be treated with such awe and gravity. After all, it is meant to be a lifetime commitment. Requiring these sorts of agreements would cause both the marriage and divorce rates to drop substantially.
ReplyDeleteOn the other hand, I agree with the major premise of the above comment: prenuptials encourage divorce. An agreement not only makes the process factually easier, shorter, and less expensive. A prenuptial agreement plants a seed of doubt that the marriage will not work out, and creates a "fire escape" of sorts. Marriage counseling has the benefits of solemnizing the occasion and encouraging the openness that forestalls potential marital strife. However, it lacks the broad societal acceptance that would make every couple seek it out.
It is within the province of the church and not the government to inspire healthy and prosperous relationships. I am grieved by the many marriages that fall apart each year (marriages don't fail - people do). And I think self-sufficiency and pride are a big part of the problem. Unfortunately, we just don't have the solution yet.