Monday, February 06, 2006

Five-Year Brides

Hogarth's Marriage à la Mode, plate 1, aka 'The Marriage Settlement' - image file from Wikipedia

In one of my favorite passages from The Second Brain (1998),
Michael D. Gershon argues merrily that there are no such things as Laws of Nature. If there are, he asks rhetorically, where's the law enforcement? How cheerful it is to assume that natural laws, should they exist, would operate on the same principles as criminal law. But, as everyone finds out sooner or later, the enforcement of contracts, or of court orders sent down in civil suits, depends greatly on the relative zeal, muscle and purse of the interested parties. With that scope for irregularity in mind, one might step back and consider whether natural laws might yet exist, and ponder whether matrimonial law, at least, has something to do with Nature or possibly Music.

Various systems of matrimonial law have long focused on who might marry, under what circumstances they might marry, and, secondarily, how to assure future support for the parties and their offspring. In Hogarth's day,
complicated individualized contracts had come into widespread use in England and elsewhere in Europe, but were still far enough outside the norm to be worth satirizing. The provisions of such contracts might have remained in place for the lifetime of the parties, with continuing effects devolving on the offspring of the marriage and questions of their inheritance. These days, by contrast, it's a toss up whether support obligations will be honored at dissolution at all, let alone whether property rights be will be preserved - if there is any property left after funding the divorce. Now, in some well-publicized instances, the interests of the future offspring are being frankly bypassed in favor of the interests of the supporting or richer spouses. This overriding concern for the financial well-being of the richer spouse and the safety of that spouse's assets might change the focus from whom to marry to how long it is safe to stay married.

The current pitch for pre-nups is that they will make the coming divorce less painful, complicated, expensive, and generally hazardous, though it's far from clear whether things can possibly work out that way. Of course, the prevalence of divorce and the contemporary delay in marrying makes it necessary to protect one's assets and prospects before and during marriage and remarriage as well. The proponents of pre-nups claim that they are needed in many more instances than before, so everyone should have them, i.e., in these days of synthesized families and unpredictable career growth (or failure) for either party, a prenuptial agreement is essential for anybody with any assets or future at all. It used to be that betrothal pacts between families were sealed by a religious ceremony followed by nuptial consummation by the couple. If pre-nups turn out to be as popular as their proponents would like, instead of saying, "You may now kiss the bride" on closing the ceremony, it will probably be better and more useful to say, "Now, please shake hands with the bride."

handshake photo from --Canada's leading resource for prenuptial agreements

In recent but more sentimental times, a fifth anniversary was considered good enough to be celebrated with wooden presents - or, for the more forward-looking or luxury-minded, with clocks.
Going forward from paper at anniversary number one, it was fine to anticipate silver, golden and ruby weddings to come. Now, the fifth anniversary is becoming the upper limit. Recently, it seems, every other high-profile player is being publicly instructed by legal advisors to call it quits at five years, for no better reason than that five years are up, which begs the question, what is the magic of the five-year milepost?

The first misunderstanding or miscalculation fostered by the pitch for pre-nups is that a pre-nup takes the last word during the breakup. Actually, when a relationship falls apart, or its time is up, whatever, a court is free to divide and award the marital property in a manner deemed fair and equitable -
without regard to the terms of the pre-nup, if necessary. Typically, if the contract gets in the way of other laws or superseding considerations, the court will override its provisions. (This is why divorcing spouses bring in objections to the agreement on charges of fraud, duress, unconscionability and the like.) The rule of thumb, in any event, is that the longer one is married, the more likely it is that the entire marital estate will be divided equally between spouses when divorcing. For a short term marriage, on the other hand, the most typical approach the courts take is to return the parties to the financial condition they were in before they got married. This is often the intention behind the pre-nups drawn up where one spouse is vastly wealthier than the other. Under five years is generally taken to be a short term marriage. The Federal Centers for Disease Control and Prevention keeps track of such things and reported eight years ago that twenty percent of all heterosexual married couples either separate or divorce within the first five years of marriage. This means that there's a Five-Year Itch as well as a movie called 'The Seven Year Itch'.

Besides, if more than six years elapse in the course of a marriage without any attempt to assert the terms of the pre-nup, the Statute of Limitations would be held as having been tolled on the unenforced pre-nup, so that either party would then be well within his or her rights to shred (or, more politely, "set aside") that pre-nup. Conversely, if either spouse wanted out of the agreement after six years, that would be too late. If you are canny and start a divorce a year ahead, there's time for your lawyer to amend pleadings and fine tune them to the situation at hand. If there's a so-called "sunset clause" in the pre-nup, meaning an internal agreement as to its expiration date, which is often set at five years, this sunset might backfire and, rather than allowing the pre-nup to sink quietly below the horizon, provide the cue for scheduling the divorce instead. This turn of events might become especially urgent if the moneyed spouse is fighting off his or her own sunset years, and/or the perception arises that there is a need for either party to acquire or reserve money for another round of marital negotiations.

Who better to enforce a contract than the lawyer(s) who wrote it, and what better test of the value of a pre-nup than the divorce for which it was intended? To test a contract's viabilty before the court, to have the opportunity to defend one's own work and get paid for doing it, all of that makes a sweet package indeed. So, if a pre-nup is the prelude, then the marriage may well turn out to be a fugue, because enforcement (or rescission) is just around the corner.

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