So you’re thinking about tying the knot. Congratulations! Not to rain on your parade, but have you considered what might happen if you ever need to untie the knot?
Divorce is a game for very rich men, whose lifestyles won’t be dramatically affected by the cost, or very poor men who have no assets or children to quibble over. For the rest of us, family court is a battlefield to avoid at all costs.
According to two authors who explored the dank netherworld of family court, divorce is a $50 billion industry run by unaccountable judges and occasionally shady lawyers who are incentivized to incite conflict and drain their clients’ assets (Sorge and Scurlock 2013). This system is especially unfriendly to men. Here are a few points to consider before you say “I do.”
- Women receive approximately 96% of all alimony awards (Sorge and Scurlock 2013; Williams 2013).
- Five out of every six primary child custody arrangements are awarded to women (Grall 2016).
- 53 percent of mothers who are awarded primary custody are also awarded child support, compared to only 31 percent of fathers who get primary custody (Grall 2016).
- Divorced men have higher rates of substance abuse, depression, health problems, and social isolation than their ex-wives (Felix, Robinson, and Jarzynka 2013). Divorced men are also twice as likely as married men to commit suicide (Kposowa 2000).
Here’s another troubling statistic. While men and women initiate an equal number of breakups before marriage, women initiate 69 percent of divorces (American Sociological Association 2015). Women are clearly more comfortable dissolving their marriages, and I’m not the first to suggest it is largely because they are aware of their advantage in the courtroom.
Divorce is simply costlier for men, which means marriage is riskier for men. Here’s a question to consider before you marry her: Does she love you enough to share that risk?
Prenuptial agreements help equalize risk by outlining a fair distribution of marital assets, though they don’t equalize risk entirely. While I was writing The Tactical Guide to Women, Denver family law attorney Sharon Liko told me,
“A prenuptial agreement can really only protect your assets. Agreements waiving maintenance [what used to be called alimony] may not be enforceable because the court has a right to review maintenance at the time of divorce. If they find that the waiver is not fair or conscionable given that person’s current circumstances, the court can set it aside.”
It’s also important to know that prenups cannot protect your parental rights. Judges are mandated to pursue the child’s best interest regardless of what the parents have agreed to do, and judges rule heavily in favor of women.
Still, prenuptial agreements can help a couple decide how to handle future debts and earnings, and that’s no small consideration. You wouldn’t want to walk away from a marriage with none of the assets and all of the debt, which is precisely what can happen to a man during a bad day in family court.
Dating and marriage may be about love, but the marital contract is a contract supervised and enforced by the state. I don’t know about you, but I would avoid doing business with anyone who said, “I won’t share the risk with you, but I will share the profit.”
A Touchy Subject
A quick internet search using a phrase like “my boyfriend wants a prenup” reveals what’s probably obvious. Some women feel insulted when their men ask for prenuptial agreements.
I can’t blame a woman for being momentarily taken aback. The topic sounds like a big, wet blanket on what she probably thought was a romance for the ages. It might even seem distrustful.
Of course, a prenup isn’t about mistrust. It’s about recognizing the world as it is. Couples divorce for all kinds of reasons, like affairs, alcoholism, illness, money problems, weight gain, sexual incompatibility, and traumatic events like the death of a child. Even a man who finds himself unemployed increases his odds of divorce by 21 percent (Killewald 2016).
Divorce is harder, more complicated, and more expensive for couples who pretend it can’t happen to them. This is a heavy topic, and that’s why it’s best to bring it up early in the relationship—while stakes are low—rather than late in the relationship while she’s choosing flowers for the wedding.
Think conversation, not confrontation, when you first broach the subject with her. Don’t hit her all at once with facts and figures about one-sided divorce outcomes unless you want to come off as a paranoid zealot.
Introduce the idea slowly and dispassionately, but assertively. She deserves to know up-front if you’re unwilling to marry without a prenup. If that’s a deal breaker for her, then count yourself lucky because you discovered her inflexibility early. You dodged a bullet, and you’re now free to search for Mrs. Right.
As an unmarried man, you have bargaining power. You can walk away from the table with your assets and your future intact. That bargaining power vanishes the moment you sign the marriage contract. The time to deal with the question of risk is beforehand, not after.
If she’s unwilling to share risk at the beginning of the relationship, do you suppose she’ll play fairly during a divorce? Can you depend on her to show mercy when she’s hurt and angry, and when she holds the cards? Perhaps. But you don’t lose anything by putting it in writing. Get the prenup.
It doesn’t need to be a painful discussion. Think of it as an opportunity to test your ability to navigate life choices as a couple. Give her time to get used to the idea if you’re raising this issue late in the relationship, and take her concerns seriously. Let’s look at a few common objections to prenuptial agreements.
”Don’t You Trust Me?”
Many women, and a few men, object to prenuptial agreements on the grounds that married couples should trust each other implicitly. This is a fair objection. It’s not irrational for a woman to assume you’re questioning her trustworthiness by asking for a prenup.
She may not realize the amount of risk she’s asking you to take by foregoing a prenuptial agreement. She’s asking you to demonstrate trust by not signing a prenup, though she could just as easily demonstrate trust by signing it. These are equal measures of faith, but they are not equal measures of risk.
By asking you to marry her without a prenup, she’s not only urging you to trust her intentions during a divorce—when she’s hurt and angry—but she’s also asking you to trust the family court system.
That system is quantifiably biased against men, and it occasionally seems hell-bent on destroying a few of us. If you’re in the mood for some dark and sobering reading, have a look at Chris Mackney’s suicide note. This father of two killed himself after a protracted and hopeless battle against the family court system.
A fair and reasonable prenuptial agreement isn’t a proclamation of distrust. Instead, you can use it to codify trustworthiness. If you truly believe in each other then neither of you should feel threatened by a written agreement stating you won’t saddle each other with debt or try to leave each other homeless; that you won’t tamper with the resources that should go to children from your previous relationships; that neither of you will let your feelings rule the day if that day should ever arrive. If trust is truly the issue, then there should be nothing wrong with agreeing to treat each other fairly and in good faith.
If she refuses to recognize the fact that she is asking you to take the larger share of risk, and if she remains unwilling to sign a fair and reasonable agreement, then you must ask yourself: are you willing to marry someone who will only commit to you if the odds are stacked solidly in her favor?
”I’m Not a Gold-Digger”
Asking for a prenup is not the same as calling her a gold-digger. I assume you wouldn’t be marrying her if you thought she was a huckster. Nor does a prenup mean she will walk away empty-handed after a divorce. You both get to negotiate the terms. You can remind her that it’s in your best interest to negotiate fairly because otherwise the court may throw out the agreement, as Sharon Liko warned us.
As an aside, signing a prenup is an effective way for her to demonstrate that she is not a gold-digger, though I wouldn’t put it to her that way. She may feel you’re questioning her character because she simply is unaware of the disadvantage men face in divorce court.
The softer response is to explain that there are some events even the best marriages don’t survive, and the prenuptial agreement is a commitment to take care of each other if you split up. It is a vow to be kind and honorable during your lowest moment. In other words, rather than being an insult to her character it is an opportunity for each of you to demonstrate character.
”You’re Making Me Pay for the Bad Behavior of Your Ex-Wife”
You know what kind of guy is likely to insist on a prenup? One who has already been burned in divorce court. That man’s second fiancee might reasonably conclude that he’s holding her accountable for his first wife’s poor behavior during their divorce.
That man probably didn’t think his first wife could be so vengeful. He’s kicking himself for failing to insist on a prenup the first time around, and he doesn’t want to make the same mistake twice. He has learned the hard way what attorney Sharon Liko told me: The woman a man divorces is not the same woman he married.
It’s reasonable for a divorced man to be anxious about his second marriage, but it’s unreasonable to project his first wife’s behavior onto his new fiancee. He shouldn’t go forward until he untangles the two women in his mind and is able to treat his fiancee as an individual rather than an amalgam of his past relationship mistakes.
Once that’s sorted out, then its time to return to the topic of the prenup.
”Why Do We Need a Prenup When We Don’t Have Anything Yet?”
I know how it is. You’re a young couple starting out with nothing. She might wonder why you want a prenuptial agreement when neither of you has anything worth fighting over.
I suppose you could skip the prenup if you plan on staying poor for the rest of your life, but you better plan ahead if you have higher ambitions. A prenup is a great way to address a couple of important issues.
First, it is a promise to play fair if things fall apart. You can both agree that you will share what you create together, and that things like trusts and family money will be off-limits. You can decide in advance how you will handle joint ventures and investments so neither of you has to worry about being fleeced in a divorce.
Second, you can include one life-saving clause in the agreement: the promise to settle any future disagreements with mediation rather than opposing counsel. Otherwise, it only takes one spouse to hire a divorce lawyer and start a devastating war of attrition. Mediation focuses on reaching a mutually-satisfying solution rather than fighting like jackals over every little scrap, which is precisely what some unscrupulous divorce lawyers would have you do.
In fact, many upstanding lawyers recommend hiring a single mediator to draft the prenuptial agreement. That mediator would represent your joint interests, which seems much smarter than hiring individual attorneys to haggle over terms and sow discord.
Hiring a mediator to draft the agreement sets a tone of teamwork and fairness from the outset. I would, however, make sure the mediator is an experienced attorney who will avoid mistakes that could make a divorce messier than it needs to be.
”Divorce Should Be Painful Because It’s an Incentive to Fight for Our Marriage”
Over at Huffington Post, Tamara Shayne Kagel argued against prenuptial agreements on the grounds that, “If you have an easy out, it is all the more tempting not to do the hard work of repairing and maintaining a relationship and to just turn to the easy alternative.”
I suppose it’s possible that a prenup decreases commitment, though Kagel provided no evidence of that, nor could I find any. Her argument is that the ugliness of divorce gives a couple the incentive to work through problems and remain married. In her view, prenups dilute that ugliness and therefore make it easier for couples to split up.
There are two problems with this argument.
First, divorce is never an “easy alternative,” even with a prenup. It uproots children, disrupts friends and family, costs time, money, and heartache. Any increase in a couple’s desire to upend their lives due to a prenuptial agreement must be marginal at best.
Forgoing a prenup in order to increase devotion is like removing the seatbelts from your car in order to increase your incentive to drive safely. The only thing that increases in the absence of a prenup is the likelihood that a couple’s hard-earned money will go to opposing divorce lawyers.
Second, this argument ignores the fact that women initiate more than two-thirds of all divorces. The family court system has created an incentive for men to avoid divorce, but not women. If Tamara Shayne Kagel would like to increase commitment on both sides of a marriage, then she should argue in favor of prenups that equalize risk. That would help women feel as committed to their marriages as men do.
Of course, that argument is a bit aggressive to use with the woman you love. Here’s a softer response: “I have no intention of divorcing you. That’s why I’m marrying you. I want to know we’re both committed to working through the tough times rather than walking away from each other. A prenuptial agreement can make sure we both have an incentive to fight for the marriage if things ever get tough.”
This is also a good opportunity to point out that a prenup protects her as well as you. For example, if you live in a community property state (one in which spouses automatically inherit half interests in each other’s assets and debts) the agreement can protect her from your debts in the event you go off the rails financially.
Get Comfortable With the Term “Deal Breaker”
You shouldn’t sign a prenup—and arguably shouldn’t marry at all—if either of you is entering the agreement grudgingly. You should not bow to emotional pressure unless it’s appealing to spend the rest of your life being coerced and manipulated, and she should not sign something that will plant a seed of resentment against you.
The term “deal breaker” has an ugly connotation, though I’m not sure why. It’s nothing more than a stipulation one party believes to be non-negotiable because violating it would most likely lead to failure.
Maybe another term for “deal breaker” is “anti-failure mechanism.” If the two of you can’t find common ground on a question as basic as how you will behave during divorce, then there’s little hope of resolving other fundamental disagreements down the road.
Marriage isn’t about money, but divorce certainly is. If she remains unwilling to share the risk of marriage after a reasoned presentation of your viewpoint, then it’s time to consider the possibility that you are not the ideal man for her.
There’s little harm in going your separate ways before you’ve built an unsustainable life together. Breaking up may feel devastating, but that feeling will pass and you will both recover. The authors of Freakonomics have demonstrated that saying goodbye doesn’t hurt nearly as much as we think it will (Levitt and Dubner 2014).
However, if the two of you are in agreement, then sign the prenup, file it away, and never think about it again. Plan on overcoming the rough patches and protecting your marriage. Be generous with resources and affection, and combine your assets because couples who do so are likelier to stay together.
Prenuptial agreements help men enter marriage without reservation. If she’s the one for you, then sign a fair agreement and be all-in.
Felix, D.S., W.D. Robinson, and K.J. Jarzynka. “The Influence of Divorce on Men’s Health.” Journal of Men’s Health 10: 3-7.
Grall, T. 2016. “Custodial Mothers and Fathers and Their Child Support: 2013.” U.S. Census Bureau: Current Population Reports.
Killewald, A. 2016. “Money, Work, and Marital Stability.” American Sociological Review 81: 696-719.
Kposowa, A.J. 2000. “Marital Status and Suicide In the National Longitudinal Mortality Study.” Journal of Epidemiological Community Health 54: 254-261.
Levitt, S.D., and S.J. Dubner. 2014. Think Like a Freak. New York: Harper Collins.
Sorge, J., and J. Scurlock. 2013. Divorce Corp. Jackson, WY: DC Book LLC.
Williams, G. 2013. More Men Get Alimony from Their Ex-Wives. Reuters. Retrieved from https://www.reuters.com/article/us-divorce-alimony-men/more-men-get-alimony-from-their-ex-wives-idUSBRE9BN0AW20131224.