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By November 14, 2011

Prenuptial Agreements

With the divorce rate in the U.S. for couples that were “madly in love and vowed to forsake all others until death do us part” hovering consistently around the 50% mark, there is a real issue with the way we choose marital partners. Everyone wants love and commitment, and we all enjoy the romantic dream of having someone to love that loves us back. However, when one partner has disproportionately more materially than the other, fear of loss often overshadows the desire for love.

Potential partners look at these frightening divorce statistics and feel as if the likelihood of personally suffering the pain of divorce is very high. Unsure of their own commitment to marriage, as well as the commitment and honesty of their partner, they seek out ways to protect themselves emotionally and financially. With their mind set on protecting themselves in every way possible, these individuals enter into marriage actually EXPECTING the marriage to fail. Their protectiveness shouts to the world: “if this doesn’t work, I may have a broken heart, but at least I get out with all my chips!”

My point of view on premarital agreements is this: Prenups are redundant and unnecessary if you handle your business like a responsible adult.

Laws already exist which protect the property and other assets owned by an individual PRIOR to marriage. Therefore, to protect one’s holdings acquired before marriage, all one would have to do is set up a separate income stream to maintain previously owned properties (such as rent from those properties), trusts for his or her children, IRA’s, insurance policies, etc. These are separate property and not considered in divorce proceeding involving a division of community property.  However, separate property can be considered as community property under the law if the couple mixes income or assets from the spouse into the pre-existing holdings.

Therefore, if you have property and you want to make sure you keep it no matter what, you don’t use any of your mate’s money to improve the property or make mortgage payments. And you don’t use any of their time, energy or labor to improve or maintain the property either.

Wills with custodial clauses take care of the business of your preexisting children and what they get of your estate, so a prenup isn’t necessary for that either.

Assets acquired after a couple marries (from salary, new business ventures or property acquisitions) must be split equitably, as is set out under community property laws on the books in at least nine states.

With all that said, are prenuptial agreements really necessary to protect assets acquired while single, or are they more a statement of greed and fear?

In my opinion, the primary ingredient in failed marriages is simply poor choices in partners.  A man may choose a woman for her physical beauty, sexual magnetism, or other attributes that make her an ego-enhancing trophy mate with bragging rights.

A woman may choose a man for his professional status, because her biological clock is ticking, because she is lonely and he’s the only one around, or his sexual abilities.  Sadly, too many people confuse these childish dependencies with love.  Rushing to the altar in a relationship of convenience, these couples seek satisfaction of a temporary or ego-based fantasy “need.”   To me, such couples are not compatible on any level which would justify a long-term commitment like marriage!

A spiritual marriage SHOULD be built on a solid foundation of love, trust, honest communication, and the willingness to unselfishly put the needs of the marital relationship before the personal desires of either party.

Marriage requires an unwavering contribution of time, energy, effort and resources (financial, mental, physical and emotional) from BOTH parties.  Each of the couple should be focused on what they can do to make their marriage work, not on what they want to make sure they don’t give to the other.

I fail to see where a prenuptial agreement honors the code of a spiritual marriage.

Prenuptial agreements are a tacit agreement and formalized written contract between two parties that memorializes their distrust of each other. The prenuptial agreement is a plan for easy escape WHEN the marriage fails, and sets out in detail what one party is willing to give up to get the other out of his or her face as quickly and painlessly as possible.

Many women do choose to willingly sign premarital agreements, their logic being that they are marrying the man, love him, and want him to feel secure.  I question that principle.  I believe someone that fearful of loss and willing to make those sorts of demands on his potential wife is not marrying for love, he is marrying for convenience… to have his needs met while risking as little as possible.

Bottom line:  someone that lacks complete trust and confidence in their choice of life mates, that insists on emotional, psychological and financial sanctuary via prenuptial contracts should reconsider marriage.  It’s really not for you.

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