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LafayetteLady -> RE: Prenups (9/25/2011 11:09:42 PM)
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~fast reply~
I have worked in both matrimonial and estate law. In NJ, a spouse can NOT be disinherited, not by will or pre-nup. They will get 1/3 of the estate. A pre-nup will not supercede a will and in most cases, the most recent legal document is the one that takes precedence, not the first written. If that were the case, people would never be able to change their wills.
The beauty of youth and romance is the idea that "love conquers all" and the feelings one has on their wedding day (and that time immediately preceding it) will last forever. Some do marry until deat, some happily, others sticking it out because of the vow even though everyone is miserable.
The problem is that while amicable divorces do happen, acrimonious ones are more common. Very few people are thinking about divorce when they marry. We all want to believe that it will be our "forever love." Sadly, it isn't always the case. Not because people rushed into things and didn't get to know each other, but because other things happen.
I worked a divorce once where a couple married. He was a wealthy orthodox jew, she a middle class protestant. His family was adamantly opposed. She loved him so much, and was so sure that things would last that she went through all the classes to covert to orthodox judiasm. Right before the big ceremony affirming her conversion (DesFIP or DarkSteven can provide the correct name, I've forgotten it), he decided he didn't want to be married to her anymore. Obviously, this wasn't on her mind during the something like seven years she was working towards coverting to his faith. If I remember correctly (it was more than ten years ago), they didn't have a pre-nup, but that isn't the point. The point is that he loved her enough to marry outside his faith and his family's wishes and she loved him enough to go through a pretty rigorous education to convert to his faith. Somewhere along the line something changed. Neither planned it, but it happened.
Nothing and I do mean NOTHING brings out the worst in people like a divorce or death. Often the person you loved and shared so much with becomes unrecognizable during a divorce. Even then, it isn't necessarily about the assets, but anger that is driving everything. During a divorce, one often goes through the same stages of grief that occurs with death and terminal illness.
It's very easy when we are young and don't have a pot to piss in or are even earning a living for ourselves to want to believe the idea that a marriage of ours will last forever and the person we know at that moment would never turn vicious if a divorce ever occurred. Pre-nups tend to be used by young people who come from money and are marrying someone who doesn't come from money, and now, by older people who have aquired things, have children and are marrying for a second (or third or fourth time) and having seen how their partner can turn into someone they don't recognize want to make sure that doesn't happen again.
In power exchange dynamics, we have all heard the horror stories about the sub who gave all control to the dominant and suddenly found themselves out on the street with nothing. They are always shocked because those dominants always promised to take care of them.
When a relationship goes bad, people are angry and often want to make sure their previous partner feels pain. It doesn't always happen, but it happens enough that smart people are going to make sure they don't lose everything. I have seen people in a divorce fight over custody of the dogs, pieces of furniture and even a bottle of Sambuca.
Even in death, children from a previous relationship have taken a house away from the current spouse and spouses have kept family jewlery that should go to children. I once had a case where a man couldn't even be buried until our office retrieved his will to determine what he wanted in the burial (typically not discussed in a will since probate happens after the burial).
Like it or not, when people get angry or hurt or just see dollar signs, greed takes over. More often than not divorce is ugly and painful. A pre-nup can alleviate quite a bit of that protecting BOTH people. Nothing is ironclad, and yes, pre-nups and wills have both been deemed unenforceable by the court. The court can deem parts or the whole thing to be unenforceable.
Depending on the length of the marriage, a pre-nup stating no alimony under any circumstances isn't going to have that part up held.
Also to the person who said that alimony is not awarded unless there are children, that is child support, not alimony.
At the end of the day, no matter how much some want to say it is based on trust, pre-nups are based on reality. Life always has shades of gray, working in the legal field is the quickest way to learn that.
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