2010 September 04 Saturday
Could Prenups Save Marriage?
Audrey B. Pollnow of The Anscombe Society argues that prenuptial agreements would make people take marriage more seriously and cut down on the number of people who decide to divorce.
I had the greatest idea the other day: get a prenuptial agreement! (As it doesn't look like I'll wed soon, this plan may take a while to go into effect.) "Why," you might ask, "would somebody so virtuous and chaste want to get a prenup?" Well, let me tell you! Since I don't accept the possibility of divorce, my prenup will be designed specifically to make divorce as painful and awful as possible. All assets will be seized by the state. I will own my husband's right arm, left leg, and right ear, and he will own mine. Because of this, divorce would necessarily entail a sundering of limbs. And let's face it, if we really took marriage seriously, we would understand divorce to be a similarly violent affair.
She's looking at it from a woman's perspective. But most divorces are initiated by women, not men. The teeth in a prenup would have to be especially fierce for women.
A prenup would also need clauses that allowed one side to divorce if the other side was caught having an affair or doing one-night stands. Then the problem becomes the burden of proof.
I'm not sure prenups could by themselves be legally strong enough to have the intended effect. There are limits (that I do not understand in detail) about what you can put into a prenup. What would work better: If the state offered different marriage contracts. Revive the marriage contract that existed before state legislatures instituted no-fault divorce. Make it an optional contract that people can agree to at the time they go to apply for a marriage license. They could get a license that included optional clauses that bound and obligated them in various ways to each other and to future children.
One important clause needed: A get out of marriage free option for the husband (no alimony, no child support, more than half the property goes to him including anything he had coming into the marriage) if they had a baby whose DNA showed it did not belong to the husband.
Make divorce expensive for men and you make marriage expensive for men. The socialists want this as marriage is a counter-revolutionary institution. One change that would help: let a man not pay child support if a DNA test shows the child is not his. Another option: give custody of the children to the father by default. Those reforms won't happen while boomers are in charge though, in fact I expect polygamy to be legal ten years after gay marriage.
Dave in Seattle,
First off, there are not many lobbyists for polygamy. So I expect inconsistent treatment for so-called alternative lifestyles. The slippery slope might not be all that slippery.
However, Muslims could increase the incidence of polygamy. Then we'd see a battle between the "polygamy is evil because it is practiced by evil Christian white male abusers of women" versus "polygamy is part of Muslim culture and religion and we might bow to sacred multiculturalism and allow Muslim polygamy". The Left will be torn in two directions. Not such which story will win out.
So basically a prenup that equalizes the cost of divorce for both men and women. Women initiate more divorces when the post-divorce financial arrangement is skewed towards women? Gee, whooda thunk?
I would also change the law to make joint custody the default, and require the divorcees to remain in the same city (or state, at least) in order to keep such custody. I believe that in Colorado this is the standard.
Forcing men to pay child support even for children that aren't theirs is a policy that has been rendered unacceptable in an era of DNA testing. It's probably even un-Constitutional.
Joint custody should be the default, as WJ Alden notes. It should not be that hard to derive a basic formula for these prenups that makes a fair and equitable division of assets if the marriage founders due to cheating (I include sexual abuse of children here) or physical abuse by either party that takes into account prior and future earning potential, any income/career development foregone by one on behalf of the other or for childrearing, etc. Ownership of joint assets accrued during the marriage could vest according to a schedule, just like a stock option. I'm sure others have thought more deeply about this and have better (more practical?) ideas.
Basically, I'm for divorce being very, very difficult to get, and for the norms of divvying up things post-marriage not to favor either gender. Both parties (or maybe just the transgressing party) having to pay some sort of 'divorce tax' to the state might be a good idea, too.
There should also be significant advantages, tax and otherwise, to marriage, to encourage people to form solid relationships...but to think long and hard about entering into a lifelong marriage from which it will be very difficult to exit.
What would work better: If the state offered different marriage contracts. Revive the marriage contract that existed before state legislatures instituted no-fault divorce. Make it an optional contract that people can agree to at the time they go to apply for a marriage license.
Read up on Covenant Marriages. They're already offered by a few states and people are bypassing them. From a pragmatic POV their unpopularity makes sense - there is no benefit other than the intangible psychic benefit and the downsides are a restriction on freedom in case the worse comes to pass in the future of that marriage and divorce is necessary. Now, because their is usually a societal cost associated with divorce, there should be societal benefits offered to those who choose to make divorce a difficult option to implement. The whole gay marriage debate is about extending marriage benefits to a new class of people, so the concept of the State offering benefits to one group of people that are denied to others is already well established. All that needs to happen is to take the concept of Covenant Marriage and attach significant tax and legal incentives which more than counterbalance the loss of free choice on the issue of divorce.
Now, because their is usually a societal cost associated with divorce, there should be societal benefits offered to those who choose to make divorce a difficult option to implement.
More generally,he societal benefits should be offered to anyone who chooses to replace judicial divorce with paid private arbitration. As a side-benefit, this would expand the range of feasible prenup contracts.
More generally,he societal benefits should be offered to anyone who chooses to replace judicial divorce with paid private arbitration.
By societal costs of divorce I'm not referring to the court costs, I'm referring to day care costs, welfare costs, costs associated with dealing with the maladies which often develop from being raised in a fatherless home.
Even if it didn't wholly solve the problem, I am in favour of this simply because it may help toward solving the problem of women who get married with the thought of a lucrative divorce in mind from the very outset.
If it is made clear by society that marriage is not another avenue of swindle to getting something for nothing, this would be a good first step.