A local radio host is getting married this week. On his show this morning, he and his cohost were discussing his prenup agreement. The cohost felt that a prenup was just an expectation for a marriage to fail but the guy getting married said his was different. He said that they encorporated their wedding vows into the prenup, using a lawyer of course. He read a few parts and it actually did sound like legalese translations of typical wedding vows. He even stated that he's getting a legally enforceable contract for his marriage, which is what marriage is supposed to be in any event. The other guy suggested that the vows were a verbal contract and technically served the same purpose. Unfortunately, I arrived at work at this point and missed whatever they said next.

I've been thinking about this all morning. As many of us have lamented about, the trouble with marriage vows is that they are not enforceable and there are no punitive damages of any sort when they are broken. It doesn't matter how much physical, emotional or financial damage is suffered by the victim of those broken vows (e.g. the BS), the other party walks away scott free. There is no other contract on this earth that you can break so easily with such low risk. While I have always felt that the act of signing a prenup was equivalent to accepting that a marriage will fail, this radio discussion has given me pause. Perhaps a prenup can provide a legal mechanism to protect the victim and punish the violator in the event someone does break their marriage contract. Perhaps this is a way for marriage to actually be preserved in modern society. People don't seem to give a crap about vows but they're all over contracts written by lawyers.

Anyway, I thought it might be interesting to discuss here. What do MBers think about this?

The guy echoes what I've always said. Since the vow isn't enforceable, a pre-nup is or can be nothing more than making the vows a legal contract that is only enforced should someone violate the vows.

I think for it to be in the spirit of it being a enforceable vow the penalties have to be the same.

A prenup can probably be written so someone with great wealth could protect all of that and still engage in marital mis-conduct and if that's the case, then it's not really a vow.

But if it's written such that the one engaged in misconduct or the one who abandons the marriage loses it all, or most of what he/she has, then I believe it's in the spirit of a wedding vow.

I agree. There was a time that I thought that it was a doom and gloom outlook on M, but I have changed my view, partly because of this site. In some ways I view it in the same way as snooping....if nothing hinky is going on, then there's no reason to fear it.

This needs caution, though. I can see a pre-nup being used to swindle a spouse.

Let's say that written into the agreement is a clause stating that an affair would result in the WS leaving with nothing, or getting none of the BS's assets accrued during the marriage. So, for example, according to the pre-nup, the BS gets the house, or the BS gets to keep an inheritance.

The WS therefore leaves in a no-fault deal, enforces the pre-nup of each keeping his/her own assets, and lo and behold, a year later, the WS has met a "new" person, only it was actually the OP waiting in the wings all along.

Or: the WS stays home after an affair is revealed, "breaks up with" the OP, and then two years later divorces the BS in a no-fault deal (so each keeps his/her own assets, or all assets are evenly split).

WS then "re-contacts" OP, saying that this happens after the ink is dry on the divorce papers, only it was no such thing.

Pre-nups will force a WS to be more devious. They will make sure that the BS does not know that an affair had anything to do with the divorce.

I guess I've always viewed prenups with similar suspicion as SugarCane. It seemed to me that if you have to plan for divorce, you aren't intending to be married for life. I supposed I interpeted a prenup as a way to null & void the "til death do us part" portion of the vows. I saw it as an escape hatch and since I believe marriage is for life, considered prenups to be in opposition of my beliefs.

The way this guy was describing his is different, though. Or at least the way I was interpreting it was. Rather than providing an escape hatch, it is providing consequences to the person who violates their marriage contract. It gives legal teeth to the wedding vows. In other words, it can provide reinforcement to those vows.

Of course, waywards will have to be more devious but at least it increases the level of difficulty of maintaining waywardism. Depending on how the prenup is written, even if a wayward "breaks up" with the OP temporarily, a divorce later on could still be attributed to the affair. There are more ways to get caught and more consequences if they do. As it is, waywards dump and clean out their spouses and move in publically with their OPs all the time.

I'm also certain that these situations (WS's trying to get out of a prenup) will result in exhorberant legal fees but so do run-of-the-mill divorces these days so it's really no different in that regard.

That's why leaving in a no-fault deal would be treated the same as if they were having an affair. They broke their vows. So if you just say I'm not happy, I want to leave, it's treated the same as marital misconduct such as abuse, affairs or addiction. The misbehaving spouse is left with few if any marital assets, etc.

There will always be a weasel out there who finds a way around things. Think about it. A BS can install a keylogger or halt an email account....and a clever wayward will find the logger or just set up another account. The fact that someone might find a way around roadblocks doesn't mean we shouldn't have them.

I also believe that marriage should be till death do us part, although my DH would have had every right to leave after my A in 2006. I am very thankful he didn't. I have to say, I am more in agreement with EE about people who leave because "I'm just not happy and not getting what I want." M is supposed to be in sickness and in health, for better or for worse, for richer or for poorer. Adultery and abuse aside, this practice of leaving because it wasn't fun anymore and I wasn't happy or didn't have enough sex or he didn't make enough or she gained 30 pounds is....sad.

Actually, when you put it in context of the vows themselves, you can eliminate the no-fault scenario. If one person wants to leave for any reason whatsoever, they are not fulfilling "til death do us part." Someone who leaves because they aren't happy are still violating their vows. Besides, "I'm not happy" is just code for "I'm having and affair."

That isn't really the point I'm making, though. I'm not just talking about finding a way round something, and especially not in the sense that technology can be thwarted.

I'm saying that both parties will sign an agreement saying that if there is "fault", the defaulter will forfeit assets. This is a way of seducing one party into giving up assets that they would be otherwise entitled to.

If you are married, then in a lot of places a legacy, or a win on the lottery or shares, becomes what you in the USA call "community property". If the couple divorces, even with an affair, each will get half of everything.

That seems unfair to those of us (everybody here) who despise affairs, and think that there should be financial compensation for the marriage ending and the breach of contract.

However, at least the BS gets half.

Pre-nups are often written to protect the separate assets, so that if one person owned a house before the married, that goes back to them on divorce. If they are given a legacy, that gets taken out of the joint pot on divorce.

Someone with existing or forthcoming assets (e.g. a legacy) has an interest in getting a pre-nup signed.

With that signed, should they have an affair, they can keep their assets with a pre-nup. They won't lose half of them.

They need to keep the affair quiet and pretend that the marriage ended because "they were unhappy". They need to leave before the BS finds out and divorces THEM.

Unless pre-nups are written so that assets are lost by the petitioner whatever the reason for the divorce, the non-petitioner will be screwed.

A "whatever" pre-nup, though, would mean that divorcing on the grounds of abuse and unreasonable behaviour etc would be out. It would have to be all-or-nothing. Those spouses who post here, after years of no sex, or no conversation, or who have a spouse who goes out drinking with friends, or a spouse who plays online games for hours and will not interact in the marriage...all those people would not be able to petition. "I'm not happy" includes all those people.

Either pre-nups would have to be written so that the petitioner loses everything, or the "left-behind spouse" would have to prove the abusive behaviour, including affairs. If they cannot prove it, they would lose what they are entitled to now; half the assets.

Somewhere, Dr Harley writes that most affairs go undiscovered. In some cases, the affair ends and the WS stays in the marriage without ever telling the BS.

In some cases, though, the WS leaves and also never tells the BS why. Currently they lose half their assets. With a pre-nup, they would keep "their" assets.

It is all really sad when you start thinking about it, isn't it? It is supposed to be those most sacred, close, intimate earthly relationship we have......and trampling over it seems to be more and more common.

Working in a law office for a few months, I typed up and filed a lot of stuff having to do with divorces. It always made me so sad. the idea that these two people were happy and in love and promised each other a life of love and faithfulness....and now there was a 20 page document listing how many dishes were in the kitchen to show for it. And you could tell just by looking at some of it that adultery was at the heart of it.

When we marry, we literally take another person's heart and life in our hands. Would that everyone would treat them with care.

Good points SugarCane.

With respect to the BS getting half in a regular divorce, this may be how it is written in law but it often plays out much differently. Waywards are known to go on spending sprees, clean out accounts, rack up debts, lose jobs etc. Often, these things begin before the BS is even aware of the affair. Even after it's discovered, WS's often continue this, sometimes right up to bankrupcy. It takes so long for the divorce process to go through, often there is very little left for the BS - not even close to half. Go dig up Holyheart's and Chai's threads. It doesn't matter how much was there at the time of separation. If there's none left, there's none left. A prenup could make the entire process go a little smoother.

As for a prenup granting everything to the person who doesn't file for divorce, I doubt a decent prenup would be worded this way. Many waywards don't want a divorce, but they don't want to give up their affair, either. Usually it's the BS that files. The wayward would be at "fault" because he/she broke the vows. The same argument works for an abuse situation.

As for the other dysfunctional marriages (no sex, out drinking etc.), well, I'm not sure what to think here. Marriage is for better or for worse. On the other hand, you also promise to love and cherish your spouse. This could be a grey area that is fought over OR it could be an area where both spouses agree to divorce amicably. I know, I'm the first person to say there's no such thing as an amicable divorce, but maybe in this situation there could be. In all honesty, I hear, see and read these types of complains about spouses all the time, but none of these people ever leave until there is an affair.

I'm really just pondering here. I'm not trying to demolish the case for pre-nups. I don't have enough legal knowledge to do that, and in any case, I'd like to see a BS protected financially from the affair. My suspicion is that all divorce arrangements are unfair to some people and if you change those arrangements, you just shuffle the unfairness around.

Fault divorces require each spouse to list all the unacceptable things done to them. That seems fair enough with affairs, gambling, drug abuse etc, but degrading when it comes to farting in bed, losing one's looks or not using deodorant. Do you remember Heather Mills's complaints against Paul McCartney? He "didn't like her breast feeding", so she was forced to stop early. He didn't allow her to keep a commode in the bedroom, so she had to crawl along the landing to use the bathroom at night (she has a prosthetic leg).

I can see how it's possible to make those demands (if true!) seem cruel, and yet I know that breast feeding can become an issue if it goes on for many months. I know women who gave it up after several months in order to improve their sex lives. They knew their husbands appreciated the health benefits for the baby but were uncomfortable with it, and this affected sex.

I don't think I would want a commode in my bedroom, either. That doesn't mean the spouse has to "crawl along the landing", does it?

To get more or less money by listing each other's nasty habits is...not nice! And a judge has to weigh up whether being married for five years and having a child means that you should get half someone's �50 million dollar estate, or only �27 million...

How much money would be lost in paying lawyers to make these legal arguments? It wouldn't be as simple as making a list and letting a judge decide. Anyone with any assets to protect will hire a lawyer to make the other spouse look like a belching, farting, anti-disability, racist, snobbish FAT demon!

"No fault" means that a spouse can get equal assets if he/she finds the other spouse unacceptable. That is good for some and bad for others.

I've read recently that it is almost impossible to divorce for adultery in New York. (I know this might be wrong, but I'm British! I trust what I read on MB!) In that state, it seems to be so hard to get the kind of evidence that will stick that almost all divorces are "irreconcilable differences", and not adultery, which must be as rife there as anywhere else. Apparently, texts, emails and the like are not enough, and nor is watching someone stay at a house or in a hotel all night. You have to catch them in bed!

That's what I envision happening with "fault" pre-nups. You'd have to have serious evidence to make someone honour the agreement. Waywards, with their sense of injustice and entitlement, would fight hard to make the BS prove beyond a shadow of doubt that infidelity took place. (Or the equivalent in non-infidelity "fault" divorces.) They wouldn't willingly give up their assets, no matter what they had signed when they were in love with the BS.

The figures don't make sense!

You know what I meant.

Don't worry, SC, I have limited legal knowledge myself and I'm really only interested in this topic because I'm seeing it in a different light. All the points you make are valid.

That said, divorces in no-fault states get ugly and expensive over the exact same reasons as you talked about. Only the lawyers win these cases. The way I see it is a prenup can provide a fault-divorce option for those who live in no-fault divorce states. That's about all. The legal battles will rage on regardless.

In looking at it that way, the prenup is not so much a termination agreement made in advance of a marriage, but a legalization of the actual marriage vows. Which I rather like since currently, the vows are nothing more than ceremonial tradition and are completely meaningless from a legal standpoint.