Breaking Up Is Confusing! A Primer on Prenups and Cohabitation Hazards

Illustration for article titled Breaking Up Is Confusing! A Primer on Prenups and Cohabitation Hazards

Seeing as I am neither an oil baron nor a trophy wife (yet), I've never given much thought to the idea of prenuptial agreements. Those are for people with elevators in their houses and gold-plated-robot-monkey-butlers, right? (It's like a regular monkey-butler but golder and without all the feces.) Those are for dukes, princes, viscounts, sheiks, lords, ladies, magnates, Kardashians, and people who live waaaaay closer to the beach than me—people who actually own something worth losing. And anyway, I'm not even married. Why bother thinking about prenups? A bunch of reasons, it turns out.


CNN says:

Prenuptial agreements aren't just for married folks anymore. A growing number of unmarried couples are seeking similar legal protections through cohabitation agreements. These legally-binding contracts, which are drawn up by an attorney, protect each person's assets, address child custody issues and determine support obligations, much like prenuptial agreements do.

"We've seen a real dramatic increase," said Ken Altshuler, president of the American Academy of Matrimonial Lawyers, or AAML. "A lot more people are delaying, or forgoing, marriage and people are realizing as you get older, you have more things to protect."

Huh. To be honest, my gut reaction was…sarcastic bile. Like, sure! Why don't we just go through life never trusting anything or anybody or taking any risks! Clearly the big problem in this world is that people aren't jealous and grasping enough! Plus, this part:

Ironically, couples in the honeymoon phase of their relationship are best suited to map out these types of difficult situations, advised Daniel Clement, a divorce lawyer in New York. "It's a happy time, when you don't have the bitterness that you experience at the time of a break up."

Great. Cool plan. Hey, honey. You know how we're really really happy right now? What do you say we sit down and imagine a billion doomsday scenarios in which you try to fuck me over and steal my house? Also, you complete me and stuff. Show me the money.

Then, in preparing to write this post (down with prenups! Up with romance! No pain, no gain, bitchez!), I happened to mention the whole thing to a friend of mine-Guy Branum, a comedian who also went to law school-and promptly discovered that I don't know what the fuck I'm talking about. The conversation was so enlightening that I'm posting it here in its entirety:

Guy: It basically comes down to this: To what extent do these structures encourage a woman to focus on a relationship instead of her career because her man has greater earning potential?


Lindy: Right. But I get confused. The prenup, generally, is designed to PREVENT the woman from taking "more than her share," right? Or are prenups used to make things more equitable? Like…is the law fair? Or are the prenups fair? My brain is broken.

Guy: Well, it depends. There are two systems of divorce law in the US.

Forty-one states have what's called "equitable distribution." Those give a woman "what she deserves," so women get screwed or women get jackpots, depending on the judge. Awww, she stayed home, poor dear! Oh, she cheated on him! She deserves nothing! Equitable distribution leaves huge space for a judge-probably male, despite what Law & Order has led you to think-to make value judgments about you, a woman, and how you live your life.


And nine states-including California-have "community property," where, while married, the man gets half of the woman's income from work, and the woman gets half of the man's income from work. Things owned before marriage are separate. Community property is, in my opinion, not terrible from a feminist perspective. In California, prenups are a way of screwing women. It's a way of saying, "You get two million dollars and some lovely parting gifts." Community property presumes equality in a really badass way.

In an unmarried situation, no one has a claim. You're just constantly creating unspoken contracts. In a way, not getting married is way more dangerous for women than for men. Palimony basically doesn't exist except through contract, so a prenup for an unmarried couple is a way of getting quasi-married without the tax benefits. It's what we gays do in states where we can't do anything else.


Lindy: That's so interesting!!! And confusing.

Guy: Yes. Agreed. But magically so.

Lindy: But it seems like it might be good to have it be up to a judge's discretion. Because what if I was a terrible wife? And we were only married for 20 minutes, and all I did was be horrible and then take a nap? And then I got half?


Guy: No. It's like this. Community property: You get half from 20 minutes. But just what he made in that 20 minutes.

Lindy: Okay, so, in equitable distribution a prenup can be helpful for the lady, but in community property it is mostly for the purposes of screwing.


Guy: Yes. And all of these systems do kind of encourage women to raise a family/help her hubby with his career.


Guy: It's okay. Would you like an opinion?

Lindy: Sure.

Guy: Newfangled relationship and property arrangements are fine if you're living newfangled and feminist lives. But if you at all put your career on hold to focus on family or childcare in an unmarried situation, if you practice old-school marriage without the legal rights protecting it, then you deserve what you get. If you own a house, keep track of who pays what. But if you're not gonna do that, JUST GET FUCKING MARRIED.


Lindy: But what is the real risk for unmarried people? Aren't they just at risk for a big pain in the ass? The pain in the ass of having to decide how to split everything up?

Guy: If you're unmarried, you're just constantly creating unspoken contracts. It depends on if one of the unmarried people did commit themselves to the other's career. A big example is Robert Rauschenberg's boyfriend saying he was promised some paintings in exchange for the work he did to support Robert's career.


OH. And what if your boyfriend dies? Who gets the house? If you were married, you get the house. If you are unmarried and have no children and no will, HIS MOM gets the house. Or some percentage of the house based on the mortgage payments you haven't been keeping track of. Also, what if you have joint checking? Or what if you buy groceries and pay power and he pays the mortgage or car payments? Then, when you break up, he owns the house or car, even though you were indirectly contributing.


Guy: I know. It's all about planning for destruction. The feminist's answer, in my opinion, as a dude, is move to California and just get married.


Lindy: Okay. To sum up: community property is the #1 best for feminists because it values intangible and emotional contributions as much as monetary ones. Is that fair to say?

Guy: No.

Lindy: Oh.

Guy: The strength and determination to write your own prenup based on your property and jobs and forecasted life (but which is pretty much like community property) is best for feminists. Community property is a not-so-bad alternative for feminists who don't have it in them to fight all these fights. And in the other 41 states, women need to be on their toes and create something LIKE community property in a prenup.


Lindy: Right! Okay. God, I kind of want to just post this whole conversation. Because I feel like a lot of people have no understanding of this, particularly young people. Because I have no understanding of this and I am hella smart!!!

Guy: Do it.

Lindy: Done. Thank you. This has been fun and informative!

Guy: Now I must go write jokes about Fergie's clothes.

Lindy: Godspeed. I'm still not getting a prenup.

Source images via Yuri Arcurs and Pelham James Mitchinson/Shutterstock.



This is helpful but still a little convoluted. I think it's false to frame the issue in terms of helping women or screwing them over. The problem is really that the law has the potential to devalue non-monetary contributions to marriage. Traditionally it was the woman who did the non-monetary contributing, but that might change. So if we want people to get on board with truly equitable divorces, we shouldn't make it gendered. The point is that in a marriage (or marriage-like relationship), making money is not the only, or even the most important thing.

And even though courts and legislatures and men and women have been having this argument for decades now, we still devalue the person who doesn't make all the money. The stereotype is that if one person works and the other doesn't, the non-working partner is just living it up, sleeping in and spending her spouse's hard-earned cash. You hear this argument even when the couple has kids. And the more money the working partner makes, the less value we as a culture seem to attribute to the non-working partner . After all, the spouses of professional athletes are all money-grubbing hos, even if they got married before he was drafted, or she is raising four kids while he's on the road, or she shows up and supports him at every game/press conference/bail hearing. He's rolling it, so she's literally worthless, right?

The thing is, people select their mates. There is a reason Kobe Bryant married a 17 year old, drop-dead gorgeous young girl as opposed to, say, a 24-year-old law student. He didn't want a woman with earning potential who had her own career and priorities. He wanted a pretty woman who would be supportive of his career without the distraction of her own, and who would raise his kids and provide a family environment for him. And Vanessa Bryant gave him exactly that. But when outsiders evaluate their marriage, and their divorce settlement, they rarely identify Vanessa's contribution as having value, even though Kobe obviously thought it had value or he wouldn't have decided to marry her.

And it's no different for couples with ordinary jobs and salaries, who get married with the understanding that one person will support the family financially, and the other will focus on the kids and the home. If such people didn't value home and childcare, why on earth would they marry someone for whom that is their primary life goal? But too often, as soon as a divorce is in the works, the earning spouse conveniently forgets how valuable that contribution is.

I'd like to think that as more men take on the often thankless and virtually always unpaid duties of cooking and cleaning and raising kids and managing household finances and maintaining social relationships, that we as a culture will come to understand that that shit is important and that doing it for years while your spouse is working should not result in you being out on your ass with no money and a huge gap in your resume. But we're weird about money and we really, really underestimate how important household management and childcare is. So we'll see.