No one likes prenups.

And it’s not difficult to understand why.

I could offer my own list of reasons, but I doubt I’d do a better job than lawyer Laurie Israel in her article “Ten Things I Hate About Prenuptial Agreements.”  Israel argues that prenups are “coercive,” lacking in consideration, and a recipe for a lifetime of corrosive memories, just to name a few, and all but condemns the idea for first time marriages and younger couples.

 W. Bradford Wilcox made much the same point in his commentary for the New York Times’ Room for Debate:

[T]he kind of partners who wish to hold something back from their spouse in a marriage — emotionally, practically and financially — and to look out for No. 1 instead are more likely to end up unhappy and divorced. If that is your aim in marrying, go ahead and get a prenup. But if you wish to experience the best that marriage has to offer, find a partner who is willing to give everything to you, and do the same for them.

And with only about 5-10% of first-time spouses bothering with a prenup, it would seem that the vast majority of couples agree.

And I can’t say that I blame them.

Because, as traditionally understood, prenups are the antithesis of what most couples want their marriage to be about.

If we think of marriage as based on trust, cooperation, and mutual self-sacrifice, then prenups–with their emphasis on self-interested protection–are hardly the way many of us would want to start out.

When we think of prenups, we most often think of wealthy older men marrying a young bombshell only recently pulled out of poverty.  Or, in the immortal words of Kanye West: “If you ain’t no punk holla we want prenup/ WE WANT PRENUP! Yeah/ It’s something that you need to have/ ‘Cause when she leave yo ass she gonna leave with half.”

Maybe we feel concerned for him (some young fille do joie manipulating a lonely, elderly gentleman for her own pecuniary gain).

Or for her (a naïve young woman, bullied and badgered by her wealthy controlling spouse, part husband part over-bearing father-figure).

Frankly it’s often a matter of perspective.

The point being, that to many of us, these people are still the poster-children for prenups:

With this as our model, is it any wonder most couples choose to pass?

The Marriage Plan paradigm shift

This is where we need a paradigm shift, because, as I argued in an earlier post, EVERYONE ALREADY HAS A PRENUP. Just not one they wrote.

Instead, millions of couples leave it to their state legislatures to define what their marriage means, and how things will shake out in the event of death or divorce.  That may be fine for some, but I don’t think I’m alone in feeling deeply unsettled by having laws drafted in the 1970s decide what my wife and I “owe” each other.

So it’s time to leave behind “prenups” with all their historical emphasis on self-interest and protection and what’s-mine-is-mine mentality, and make room for something new: a marriage plan.

You’ve heard of an estate plan and a financial plan, so why not a marriage plan?

At its core marriage planning is just what it sounds like: an opportunity for couples to create a vision of what they want their marriage to be, based on their own shared values.

Think of it as bespoke marriage, as opposed to buying off the rack. A chance to custom tailor a marriage based upon what each partner wants from the relationship and from their soon-to-be spouse, as well as what each is prepared to give: emotionally, financially, as a partner, and as a parent. Under what circumstances would a parent stay at home? If one spouse needs to relocate for a better job, do you stay or do you go?  Will you prioritize paying down one partner’s student debt or saving for a home together?

There isn’t a right or wrong answer, just your answer.

Marriage is Dead, Long Live Marriage

I should stress that this isn’t just a matter of re-branding the prenup.  It’s a fundamental re-working of how we understand marriage and the state’s role in it, as our evolving ideas of marriage out-pace the law’s ability to keep up.

For centuries (millennia, really) marriage served as a legal means for transmitting property across generations, in no small part by serving as a basic precondition for child legitimacy.  But the past 50 years have seen a groundswell of change that has de-coupled marriage from childbearing, property transmission, even gender–in short all the things that defined marriage for much of its history.

Having left behind any monolithic idea of marriage, it now falls to individual couples to define what will give their marriage meaning, and the rules they intend to play by (both during and after). And this is exactly where marriage planning comes in, by removing from the state the fundamental role of defining marriage, and instead giving that power back to each individual couple.

Vicki Larson (@OMGchronicles) and Susan Pease Gadoua make much the same point in their recent book The New I Do, which I’m reading now and hope to do a book review of later this spring.

Larson points out that “it isn’t about building a life with someone, it’s about building a specific kind of life.”

The only measure we have right now of a successful marriage is longevity. Of course, we’ve all seen marriages that last “until death do us part,” yet many were loveless, unhappy and perhaps filled with anger and contempt. We believe a couple should define for themselves what would make their marriage a success, and then create a plan that holds each of them accountable.  Not every couple wants the same thing from their romantic commitments. Couples marry for all sorts of reasons, and they should be free and encouraged to create a couple-specific contract that guides their lives together based on what they consider important. Couples tend to argue about kids, finances and chores a lot; why not draft a plan that addresses those issues and revisit it regularly or whenever things shift — a second child, a career change, a move?

I’ve also been reading Larson’s blog, and have been very impressed. Much of what she writes goes to the same point, while reaching beyond my initial conceptions of marriage planning, into an even wider array of issues including monogamy (or being monogamish), co-parenting without a romantic relationship, and even purely financial arrangements.

But at its core, she and I are talking about the same thing: the need for couples, not legislators, to take responsibility for defining the rules and roles that go along with marriage.

Ironically, marriage planning also addresses some of the same concerns that motivate movements to “get courts out of divorce.” Because if the goal is to make divorce private, non-adversarial, and sensitive to a couple’s individual notions of fairness, what better way than to encourage partners to write the “rules” they want to be held to when they have each other’s best interests at heart?

Of course, this isn’t to say marriage planning is easy.  Our law, in its present form, only provides the most rudimentary workings for how a truly binding marriage plan could be implemented and enforced.  But with so much going on at the state house, maybe marriage planning should become our new priority.

It’s no small task. But it’s one I think we’re up for.

Or at least we better be if marriage is going to have a place in the 21st century.

Editorial Note: This post is part of the series, Making your Marriage Plan which will be ongoing throughout 2015. For other posts in the series, click here.

 

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