Prenups Should be Mandatory
The following is the transcript of my troop deployment (i.e. ending rant) from episode 102 of my news podcast The Mind Killer. If you like it, please consider subscribing to the podcast
In episode 83, my troop deployment was about how contract law in the US is complete bullshit. We’ve taken the historical need for a “meeting of the minds” and replaced it with a “manifestation of assent,” which just means you sign your name or click the “I agree” box and you’re legally bound regardless of whether anyone ever reads the terms & conditions. Nowhere is this problem worse than when it comes to marriage.
I’m a divorce lawyer, and I don’t know that I’ve ever had a client that isn’t surprised by some aspect of marriage law. But most people are surprised by the most basic ways that property division and alimony work, and would never have signed up for them if they were asked. Like other contracts, we just assume that if you signed your name on the dotted line, you agree to all the terms and conditions.
My solution to this is to make prenuptial agreements mandatory. My typical prenup is nearly 20 pages and is full of legalese designed to make it enforceable in court. And that kind of thing should be available. But for everyone else, they should just be given a one-page form where you check off how you’d like to handle property division and alimony. I actually designed such a form, and I’ll link to it in the show notes. It only has two sections, each with three options for how to handle either alimony or property division. You just check off which option you want . A state legislature could just make this a mandatory part of getting a marriage license.
This sort of thing would put me out of a job. Almost all of the fights surrounding divorce are about property division or alimony. If people actually thought about it ahead of time and made a choice about how to handle it, especially if the legislature directed the courts never to overturn the choice, there would be very little left to fight over. The only thing left would be custody and child support, which courts tend to handle much faster and more efficiently.
This is legitimately an equity issue. Rich people all get prenups because they realize that divorce can be high stakes and they want to customize their obligations. But most people don’t have a spare $1,000 to hire me to write them one. So they get screwed by a system that doesn’t care what they wanted or what they intended, and instead has one-size-fits-all rules that get imposed on everyone based on the fiction that they agreed to it. Instead, just give them the option at the start! It will save a lot of fighting later.