Prenuptial Agreements: Brief Thoughts On Community Property

In my community property class today, the topic of discussion centered on prenuptial agreements and whether a couple should sign one.

The basic fact pattern was as follows: one spouse has more assets and won’t marry without it, but also strongly desires to be married. The person with fewer assets doesn’t care at all, and is happy to agree to a prenuptial and to marry if it will make the other person happy.

Our group of four diverged sharply on whether a couple should sign a prenuptial. One argument, in favor of the agreement, was that careful negotiation could balance the equities. If we plan for death and other significant events, it only makes sense to prepare the just-in-case scenario. On the other hand, prenuptials do seem selfish and sets the marriage off to a rocky foundation. In essence, one spouse is saying, “I love you BUT, if we can’t work out difficulties, I want to keep everything that I’ve made.” I’m of the opinion that prenuptial agreements are antithetical to the institution of marriage. Essentially, the wedding vows “until death do us part” becomes only aspirational language as opposed to a binding covenant. Going into a marriage with an escape clause precludes a spouse from giving himself/herself completely to the marriage.

The problem I have with the fact patter is that one of the spouses strongly desires to be married, but refuses to marry without out. This is inherently selfish. Rephrased, it sounds like this: “I want the benefits of marriage, and I really like you however sometimes things get tough and if we can’t make it work, then let’s keep our assets separately like we were never married in the first place.” Enforcing these agreements creates a perverse incentive to protect oneself to the maximum extent possible in the event of a divorce.

Like it or not, by enforcing these agreements at least one spouse is taking advantage of the other. Even with attorney representation, these agreements never put parties on equal footing; the marriage partnership remains unbalanced and allows one spouse to hold back from committing completely to the relationship.