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Pre-Nups and Wedding Contracts

During this morning’s interview, we briefly discussed Tom and Katie’s supposed “wedding contract,” and I found myself getting disproportionately upset. The idea of a contract that says that you must be married to someone for a finite period of time – and that you’ll be financially compensated for each year that you uphold the contract – it just doesn’t sit quite right with me. Not to be simplistic…but that’s just not the point.

That’s not to say that I’m opposed to pre-nups; to me, they’re an entirely different matter. We don’t have one, but I think they make total sense if either party enters the marriage with significant assets. Also, Kendrick and I have talked about the possibility of drawing up a post-nup when we have children so that if things ever do get dirty between us, the custody details will have already been hashed out (presumably while we were still able to communicate openly and lovingly about what we thought would be best for our children). One of my exes was going through a divorce when I was dating him, and I thought that the position that he and his wife put their daughter in during the custody battle (even going so far as to play answering machine messages for her in which Daddy slammed Mommy, or vice versa) was unforgivable.

Anyway. Some statistics that I found on divorcerate.org and divorceform.org:

- The highest percentage of men and women who ultimately divorce are those who marry between the ages of 20 and 24.

- According to the Forest Institute of Professional Psychology, 50% percent of first marriages, 67% of second and 74% of third marriages end in divorce.

- According to the Discovery Channel, couples with children have a slightly lower divorce rate than childless couples.

- The New York Times recently revised the Census Bureau’s oft-cited statistic that 50% of couples that are presently married will ultimately divorce downward, to just over 40%. (Check out this interesting NYT article on divorce rates.)

(Caveat: I’m no statistician, as my college Stats professor will readily attest, so if I’m interpreting any of these statistics incorrectly – or if more accurate ones are out there – apologies. Feel free to correct.)

The unsurprising conclusion: lots and lots of marriages end in divorce. Which means that pre-nups are just the smart thing to do. They’re logical. So why does the Tom/Katie situation bug me so much? I think it’s because that (if the rumors are true) they already know that the marriage has failed, and they’re presently maintaining their union solely for money and publicity purposes. Why these people can be married and my friends Jeremy and Eric, who have been in love for about ten years now, can’t be…well, that makes no sense. And it makes me furious.

My question to you: What do you think about pre-nups in general, and Tom and Katie’s supposed “marriage contract” in particular? Do you think there’s a difference? Also, what do you think of the idea of a post-nup to prevent custody battles?



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May 6th, 2010 | Posted by Jordan | Love | 24 Comments »
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  • http://valeriem.tumblr.com valeriem

    There is ABSOLUTELY a difference! A pre-nup is about protecting assets, and while in a perfect would you would never need one and everyone's marriage would end with a happily ever after, the statistics you shared prove that's just not the case. A “marriage contract,” on the other hand, is a sign that a marriage is just sham from the beginning. If two people are really in love, why would one have to pay the other to stay with them?? I don't think anyone really knows the truth about Tom and Katie's marriage, but I hope for both their sakes that these rumors are not true. No one should have to live that way.

  • jordanreid

    That's exactly it: a pre-nup doesn't set a marriage up to fail; it's a reasonable, logical way to protect both parties in the long-term, given the statistical evidence on divorce rates. Marriage contracts, though, create a situation in which the marriage is set up to fail from the start. It's planned that way! Amazing.

  • http://www.lovelyatyourside.com/ Jenny, Lovely At Your Side

    Maybe you felt uneasy because you miss food? ;) How's the cleanse? Update us!

  • Mandi

    Hmm, I guess I don't have a big problem with the marriage contract. If T and K want to define their marriage in these terms, then be my guest. They're both adults and they both had their attorneys hammer out the contract. The fact is, people marry for a myriad of different reasons–money, companionship,convenience, emotional support, or merely b/c people feel they're “expected to” by society. The idea that marriage is a life-long union based solely on love is a modern conception and, I think, a bit of a fantasy. The point is, everyone has the right to determine the terms of their union, even if it contradicts dominant ideas about “what a marriage should be”….whatever that means.

  • Mandi

    I totally (and respectfully) disagree. A pre-nup operates under the fiction of “we'll never really need this.” Couples make a commitment, but “just in case” create an out for themselves. Does this set a marriage up to fail? Of course not. Are pre-nups often a good idea? yes. However, it's not nearly as honest as saying something along the lines of, “Hey, I enjoy you and love you, but let's both agree that this marriage is just as much about money and security as it is about love.” To me, that's what T and K's contract does; it bluntly admits that their union is about other things than love (although it can include love, too). I think it makes people uncomfortable b/c we don't want to think that marriage is ever about anything other than love. The issue isn't about whether these contracts or pre-nups make marriages fail, it's about the narrow way we define marriage.

  • jordanreid

    LOL. Probably. I'm semi-miserable (Want. Pizza.), but am happier at the moment because I'm sipping on vegetable broth (a permitted “cheat”), which tastes about a million times better than the juices. Seriously, that green stuff? Can't.

  • jordanreid

    Interesting: “it's about money, but it can include love too.” I think we often assume that if something's about money, it can't also be about love…but you make an excellent point.

  • Colleen

    I agree with you re: pre-nup v. marriage contract. But a lot of people just don't ever feel the kind of love you are supposed to feel when you get married, so I guess they just cash it in and look at it as a business arrangement, which is very sad.

    I could be wrong on this, but I don't think you can arrange custody in a post-nup (or pre-nup, for that matter). It has to do with the welfare of the child v. the parent's wishes I think.

  • http://www.alwaysorderdessert.com/ Alejandra Ramos

    Awww…really? You don't like the green juice? I think it's delicious! Of course, I'm a little bit obsessed with kale in all it's forms so perhaps that's why. (These kale chips, btw, are what I snack on when I am easing out of a BPC: http://www.alwaysorderdessert.com/2010/01/kale-…)

    Which level BPC are you doing?

    As for the topic, I actually know absolutely nothing about Tom and Katie and the rumors, but I know that neither my fiance nor I believe in pre-nups for us personally (and from what you describe above, that “marriage contract” just sounds horrific). We're entering into our marriage as a permanent thing where divorce is just not on the table ever. It's not an option for us. With that premise in mind, a pre-nup is just irrelevant. To bring up another celebrity couple, I've always loved (and totally agree with) what Will Smith once said on Oprah about his marriage with Jada. I just googled it to get it right:

    “Divorce can’t be an option. It’s really that simple. If you just remove the option… because if you have the option, one day that person’s gonna make you wanna divorce. We’re like, listen we’re gonna be together one way or the other so might as well try and be happy.”

    I just really like that.

  • jordanreid

    I'm trying to remember where I heard about post-nups that deal with custody arrangements….I feel like a friend of ours told us they had one.
    A whole bunch of (fairly confusing) info on post-nups is on wikipedia: http://en.wikipedia.org/wiki/Postnuptial_agreement

  • jordanreid

    LOVE that quote.
    Re: BPC, I'm doing Level II, just because. And wow, do I ever hate kale…in any form, really, but especially liquid.

  • Jackie

    As a lawyer (and the daughter of a family lawyer), I can say with absolute certainty that you cannot make a custody agreement in a pre-nup or post-nup. In fact, the practice was struck down by the Supreme Court. The only thing that courts are allowed to take into account when deciding child custody is the “best interests of the child.” Parties make custody agreements post-divorce or post-separation, but they must be approved by the court and are entirely different than the post-nups you are describing.

    Hope this helps to clear things up!

  • Amanda

    An important thing to note is that the 50 % of marriages end in divorce is a VERY simplistic statistic. When you look among people who have college degrees, the divorce rate is a lot lower. I wouldn't throw this stat around so much as it's not terribly illuminating.

  • jordanreid

    Interesting re: college degrees. Apparently the 50% statistic was an old projection that people got all excited about, and no longer is really applicable. And like you said, demographics most certainly factor in; you're less likely to have your marriage end in divorce, for example, if you get married in your 30s than if you get married in your 20s.

  • jordanreid

    It does; thanks!

  • Amy

    I totally agree with Mandi. And even a cursory glance into the history of marriage will reveal that the idea of marriage being about “love” is a pretty recent one. Although today I think what's happened is that we've completely fetishized the idea-so it's now about “the ring”, “the dress”, “the day”, “the proposal”, and a million other things that really don't have anything to do either with love or what it actually means to be a spouse. Diane Savino gave a great speech (it's on youtube) (it's about the ny gay marriage bill) talking the way we've treated marriage in this country. Anyway-my personal feeling is if someone wants to get a pre-nup, have a marriage contract, marry their toaster-(or cat-someone actually just did this!) well, that's fine with me. What someone else does with their life or marriage doesn't say anything about or take anything away from me.

  • Tom

    Oh believe me honey, if your future husband hits you or screws someone else, you'll suddenly find divorce to be an option. #cluelesspeopleallupinhere

  • http://goodhairkimluck.blogspot.com/ Kim

    I agree entirely with your assessments of the difference between a prenup and a “marriage contract,” Mandi and Jordan — but Jordan, I have a bit of a different opinion, in that I think BOTH are equally fine, depending on the marriage in question (and all marriages simply cannot be considered the same, in my view): I think that some marriages are about “other things” (but can include love) and I think that's totally fine. Thus, I can't say I believe that a “marriage contract” is setting a marriage up to fail – I just think it's a better vehicle for, for lack of a better word, I suppose, organizing the terms of a marriage in the way that some people choose to define it.
    In the simplest of terms, for me, a marriage IS a contract. It's binding in every sense of both ceremony and law, and so some people will consider their contract one of love alone, and others will view it more as a business contract that includes love. Both seem appropriate to me.

  • Clare

    The main reason I will insist on getting a prenup if I get married is because I feel that as a woman who would like to raise children I'm quite vulnerable.

    If I have kids I would like to stay at home with them for a couple of days a week raising them. To do this I would be slowing down my career and earning potential significantly (as I would be working part-time), and if the marriage broke up when the kids were still little and I had been out of the work force for a few years I don't want to be left high and dry. Does this make sense?

  • http://twitter.com/SamaraOShea Samara OShea

    I agree. Tossing around statistics when marriage is concerned is moot. Everything is circumstantial. Age, education, income etc. must be taken into consideration.

    For the sake of argument, however, let’s say the divorce rate is 50%. Once you’re inside the half that doesn’t get divorced, there’s no way to know or measure how many of those marriages are happy. As a cocktail waitress, I was hit on by many married men. They’d tell me about their kids and everything. Shameless. Marriage is like fingerprints—no two are alike.

    “Marriage is not for the weak, selfish, or insecure.” ~ Sidney Poitier in “To Sir With Love”

  • http://twitter.com/SamaraOShea Samara OShea

    I meant to “reply” to Amanda. Hence the “I agree.” It didn't work out for some reason.

  • Lawyer_gal

    I think a marriage agreement (post or pre nup) is an absolute MUST. The agreement is not simply about what divorce and seedy “pay-offs”. Pre-nups just have a bad rep :)

    Marriage agreements are also about deciding together what happens is one of us dies, becomes disable or insolvent for example, and creating predictability and financial security if anything bad happens. This is critical especially during a recession. It's also about deciding for yourselves, as a couple, whether you want to create exceptions to what state law says happens to your assets in the marriage. It's about being informed and being proactive. The example I always think of is my best friends' parents. The husband signed a loan guarantee for a close friend who defaulted and left town. Thank God the couple had a pre-nup saying that each spouse's debts were separate, otherwise the creditors could have gone after the family's assets; in this case they were only able to go after the husband's assets, which means the mom was able to continue feeding the kids and saving for the family. That's also what these contracts are for. I'll definitely sit with a family lawyer when I get married and at least look at the options and put something (even something simple) in writing between my husband and me.

    I'm sure Nolo has some basic forms you can take a look at just to get more information (http://www.nolo.com/).

  • Mai

    Jordan,

    I just want to add a few additional facts that might be interesting… I'm glad you added your caveat since statistics reported by the popular media (NYT, divorerate.org, the discovery channel) can often be misleading. It's a personal pet peeve of mine (I'm a PhD student in the social sciences, specializing in statistical modeling) when I hear people talk about the “50%” divorce rate in this country, as that average masks a great difference among populations- particularly populations that you fall into: white, female, college education. Your probability of a divorce is much lower than 50% :)

    “Developments since the 1960s appear to reflect more subtle influences, and
    have been the focus of heated political debate. Divorce rates rose sharply, doubling between the mid-1960s and the mid-1970s…the divorce rate per thousand people actually peaked in 1981, and has been declining over the ensuing quarter century. The divorce rate in 2005—3.6 divorces per thousand people—is at its lowest level since 1970…when measuring the number of divorces relative to the “at-risk population” (that is, those who are currently married), we see a similar decline in the divorce rate over the last 25 years, falling from a peak of 22.8 divorces per 1,000 married couples in 1979 to 16.7 in 2005…differences across education levels reflect an emerging “divorce gap.” Table 1 highlights a ten percentage point gap between college graduates and those with less than a college education in the probability of a first marriage surviving to age 45, and the higher divorce propensity among those without a college degree is too large to simply reflect their earlier entry into marriage. Furthermore, conditional on divorcing, those without a college degree are less likely to remarry, and if they do remarry, they are again more likely to divorce…marriage rates for college-educated women have been rising over time and, while still below those of their less-educated peers, are at a historic high.”

    This article is from two very prominent researchers in this field and was published in a very well respected peer review journal: Stevenson, Betsey and Justin Wolfers. 2007. “Marriage and Divorce: Changes and Their Driving Forces.” Journal of Economic Perspectives—Volume 21(2), Pages 27–52.

    I'd be more than happy to send the entire article to you via email.

  • jordanreid

    Would love to read it; thank you!