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Why You Shouldn't Sign a Prenup

We all hope for the best when we get married, imagining that we will still be head over heels, 40 years down the line. And even though for some of us, inevitably that will not be true, we all benefit from believing it is.
11/12/2014 01:26pm ET | Updated January 12, 2015
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About a year ago, my husband (then fiancé) and I had another couple over when the topic of prenuptial agreements came up. I reflexively said I would never sign a prenup and our friends were shocked. My husband had initially heard me say this when we were just beginning to date and I was studying community property law for the Bar Exam and though he mentioned that in some cases he thought prenups were a good idea, we both left it at that. We never broached the topic again and we went on to get married this past summer with the knowledge that one can never predict the future, but with the firm belief that we are going to give this whole marriage thing our very best effort, sans any plan for failing.

But that evening, our friends, who also went on to get engaged, couldn't disagree with us more and made all the usual arguments in favor of prenups. They believed the smart way to enter marriage was to always have a back-up plan. Like having an earthquake kit, you hope you never need it, but you live your life with more security knowing it's there. They also argued that it could prevent a possible divorce from entering into the ugly territory where both parties are out for blood. Now in some instances, I agree, that a prenup can be appropriate, particularly for second marriages which have a higher chance of failing and can create especially difficult circumstances if there are kids from a previous marriages. But in most cases, prenups are more detrimental than beneficial. I could tell that our friends thought we were naïve, thinking we were special or different just like all the millions of other couples out there who thought they were special or different and then went on to get divorced, sometimes in bitter fashion. But my argument against prenups is not because I think I am immune to divorce. On the contrary, I think not getting a prenup is a good idea even for couples who do go on to get divorced because the act of getting one is by its very nature pernicious to relationships.

The reason being, if a married couple is unhappy, and they have two options back to happiness, one is to work hard at the marriage, probably through talk therapy and time spent together, etc. and the other is by separating, I don't consider the options equal. Even though, both paths will lead the individuals back to happiness, I do feel that there is a moral argument to be made in favor of staying married. I see value in the virtue of staying married, especially when children are involved. So in my estimation, the two forms of happiness are not equal. One is better than the other. Now, I would never argue that you should remain married and unhappy. If there is no way for you to be a happy healthy person in your marriage you clearly should end your marriage because you can't be the best parent or person in that circumstance. I'm only talking about when there's an option to work really hard to find happiness again. Working hard to find happiness in a marriage is always worth it if it can be done.

But because marriage is so hard is the reason divorce must also look hard. 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. The fact that a divorce can be ugly and messy should be additional motivation for staying together. Sometimes, a relationship is too damaged, too broken, or too full of hurt to be repaired. If there is truly no way (I mean absolutely no way) for a couple to find a way to make each other happy, then the relationship probably should come to a close; after all, any other alternative would be to deny Jefferson's assertion that we all have a right to pursue happiness. And of course, if there were abuse involved, physical or emotional, I couldn't suggest divorce fast enough. However, sometimes, people give up on marriages too early. Being married and staying happily married takes incredibly hard work and I don't believe it comes easy to anyone.

At the same time, I would never presume to say that my husband and I will never get divorced because we will always put in the requisite amount of work. The statistic that convinces me of this, is the higher rate of divorce among couples who experience the death of a child or even just couples who parent a special needs child. Although these numbers often get inflated, there is scientific evidence that supports the conclusion that it is harder to make a marriage work after encountering something tragic or even just particularly challenging involving a child. Obviously, I don't think these couples were less likely to be soul mates than any other couples. I think going through something horrific like the death of a child must put extra strain on a marriage and nobody can be sure how he/she and his/her partner would react until the situation happens to the individual.

And this calculation factors in heavily in my thinking about prenups. I would never want it to be easy to walk away from my marriage. I want it to be hard because one day being married and staying happily married is going to be hard, even for the most perfect of couples. While my current wedded bliss seems worlds away from such things, I recognize it's possible I could feel resentment or hatred or bitterness, 10, 20, 30 years down the line. And if/when I feel those things, I don't want to be looking at divorce as an easy alternative where I know I'll be taken care of and can quickly find happiness on my own. I want it to look equally horrible to what I'm feeling so I remind myself that the better alternative is to do the hard work of bringing myself closer to my spouse.

Everyone's marriage is better off if you go in, believing you are in the half of marriages that stay together. And even though half of us are deluding ourselves, our marriages our all being served simply by believing we're in the 50 percent that will stay together. By believing this, we're more likely to work at our marriage to stay together. Whereas, if we've contemplated the alternative, if we've thought about what we would get and what our life would be like were we to get a divorce, we've planted a seed that can only grow with attention and thought.

The alternative where we all contemplate divorce even though half of us stay together damages all marriages because the prenup process is usually pretty nasty. It's often emotionally wrought and produces a result that is much less fair than the default marriage laws. The legal system has many faults (i.e. using drug laws to control minority populations) but the divorce court system often produces results that are much fairer than prenups. Usually prenups are wielded by the more moneyed spouse (often the man) and result in the less moneyed spouse signing her rights away because she's in love and doesn't think she'll ever get divorced, and often they do not fairly reward the primary care-taker of children. Even when the law of the state provides many safe guards for the less-moneyed spouse, a judge's hands are often tied when there's a prenup because the judge must presume that the spouse knowingly signed many of her rights away.

We all hope for the best when we get married, imagining that we will still be head over heels, 40 years down the line. And even though for some of us, inevitably that will not be true, we all benefit from believing it is.

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