Flutterby™! : Prenups

Next unread comment / Catchup all unread comments User Account Info | Logout | XML/Pilot/etc versions | Long version (with comments) | Weblog archives | Site Map | | Browse Topics


2007-08-20 16:48:32.434464+00 by Dan Lyke 29 comments

Charlene and I are trying to figure out the best way to manage some "living together" contracts, and as we've dug through various things we're thinking that maybe taking advantage of that (if properly used) societal benefit to heterosexual couples that is marriage might be the right way to go about this. We've looked at some other ways to accomplish some of the tax benefits for couples with fairly disparate incomes, and a good portion of the savings would be eaten up with accounting fees, and even then we're having trouble finding a tax advisor who'll say "that's a good idea" rather than "well... I guess we could try that."

Living wills and some of the other legal constructs we've had drawn up are fine, but there's a lot of societal power in "spouse" rather than "here are the notarized copies of papers designating a decision maker in the event of...", and we've been told that playing silly games with 1099s for services not necessarily rendered may be more hassle than it's worth.

However being, at our core, people who are deeply suspicious of marriage, we're trying to write up a pre-nuptial agreement that, should we ever decide to go our separate ways with acrimony, will protect us. Charlene is, for instance, concerned about some of the histories of possible mental illness in her genetic line, and we both want to come with break-up terms that we think are fair now, so that should such a time ever come up we have a starting place. Happy to share increases in our income that derive from joint efforts, but thinking about what happens when one or the other of us gets a windfall from something unique, like an inheritance, should we split.

Anyone got suggestions? A "divorce for people about to get married" guide?

[ related topics: Sociology Law Marriage ]

comments in ascending chronological order (reverse):

#Comment Re: made: 2007-08-20 18:06:04.838918+00 by: ebradway

Sure, the thought completely takes the romance out of the whole relationship, but just get married afterall. You're heterosexual, so there's no legal hoops to jump through. You just go down and sign the book at the courthouse.

As far as windfalls go, most states are now joint-property. That means share-and-share alike, especially future income like windfalls.

So maybe the question you should be asking is "is this the person I want to hang with the rest of my life?" and "is this the person who I don't really mind sharing half my windfalls with, even if we get royally pissed at each other?

I've spent enough time around both of you to know that:

  1. you guys have a pretty comfy (but nowhere near outrageous) lifestyle at your current level of income
  2. you are both cool folks. If I were married to either of you and I won the lottery and you wanted to split up, I doubt I'd be upset with what you'd do with your half the money.
  3. Afterall, you were comfy before the windfall and you'll be even more comfy with only half the windfall.

More poignant, however, is how you'd handle the opposite situation. For instance, you go over the handlebars on your bike and end up close enough to veggie-state that you can't write code anymore (or vice-versa).

Again, what I've seen of you two, you'd rise to the occasion to care for the other (even if that involves a trip to assisted-suicide-friendly Oregon).

Finally, having survived a divorce I can tell you that the financial stuff is a total dodge for the emotional stuff. Divorce gets nasty when one person uses the financial stuff as an emotional weapon. Neither of you are tightly bound to the dollar, so that weapon lacks an edge. If you do anything, make a pre-nup that stipulates a certain amount of joint therapy AFTER the divorce.

And BTW, congratulations!

#Comment Re: made: 2007-08-20 18:41:10.827724+00 by: Dan Lyke

As my notes on Stardust show, neither of us is terribly romantic (or, as Terry Pratchett once wrote, "romantick") in that sense. We are preparing for the possibility that, for whatever reason (see notes about histories of mental illness, and we've known too many people who thought they'd have an amicable separation), we have a spite-filled breakup full of backbiting and vengeance. Love is dealing with that stuff up-front.

So, yes, the financial stuff being a total dodge for the emotional stuff is exactly the situation we want to address beforehand. Better to do it now while we're happily communicating about such things (and, yes, that involved sitting side by side on the couch with laptops making lists) than in some worst-case War of the Roses sort of situation. Yeah, it's cold, clinical, and values intellect over emotion, that's who we are.

If nothing else, properly documenting the assets we consider of value going into the contract is a good idea, given that it appears that California's community property laws already handle the cases that we'd be concerned about tracking during the duration of the contract.

#Comment Re: made: 2007-08-20 20:18:45.596785+00 by: Nancy

OK, Meuon-on-the-road asked me to post a link. So I will. State of Grace

It's what we use. (With the added addition, later, of the State's gracing of our actual marriage.) It's worked for us, but the day is young. I am highly cynical about marriage. But, I love being married in general and I loved (and love) Meuon in particular, so...

divorce, however, sucks royally and since you can only avoid it by avoiding marriage, I classify marriage as one of the most scary things in life. But I still love it. And it's still scary.

Divorcing my first husband, and not coincidentally the father of my children, was the worst thing I've ever done. Marrying Meuon is the best thing I've ever done (said children aside).

Don't expect a lot of rationality from me on the subject ;-)

oh, and even tho Meuon is on the road, I feel certain he will be chiming in occasionally.

#Comment Re: made: 2007-08-20 21:21:17.582867+00 by: ziffle

ahhemm - I can speak with authority with possibly more experience than most here...

Rule 1 Simply put do not get married. Rule 2 If confused refer to Rule 1

Form a corporation; probably an LLC as its close to a partnership but you are not responsbile for the other except what you put in it. That way you write a paper and put stuff into the LLC or not. If one dies or leaves each has the right to buy the other out, in a method specified beforehand.

As for real estate, you have to buy it straight away, can't put it into the LLC (unless you pay cash). You can assign it into a Trust but thats beyond the scope of the article (why do thay always say that when its the precise thing you really want to know?)

Thats it. Call it the DanCharleneMarriage LLC

No blood test, you don't have to prove citizenship, don't have to tell them what race you are, and less drama should you find the END too soon. And I believe in CA you can get health insurance as employees if you choose.

Oh and if you can just find something to sell out of the LLC, like Dans Art, all the costs become deductible.

Of course If I find the right one, I disavow I ever wrote this :)

#Comment Re: made: 2007-08-20 22:10:31.231165+00 by: Dan Lyke

Ziffle: Giggle, yep, that's the direction we were going. We think that California's laws on marriage make it cheaper and more bulletproof to go the other way, especially on things like medical consent, but that's what we're exploring and why we're looking at prenups and such. Having to run home from the emergency room for the living wills and consent forms (which we've actually drawn up and keep near the door) seems like a bad idea.

On real estate, surprisingly everyone we've talked to thus far says it's as easy to specify the details of ownership and mortgages contractually as it is to do it with marriage, so that part we're not as concerned about, except in tracking percentages of ownership for any of the assets or potential assets that we'd be specifying in the prenup. Which mostly revolve around things like inheritances and windfalls, because, at least for the term of the marriage, we're willing to treat earned assets as co-owned (we do need to explicitly set out terms precluding alimony, to be revised if there's a situation where one of us does give up income for the career of the other, but that's not part of the initial situation).

Nancy, our concern is less about the mechanics of the relationship than it is about the potential of signing a contract the terms of which are largely hidden from us. Even if we do this without marriage, we still need to cross all of our "i"s and dot our "t"s to make sure that we haven't missed something there.

We got through the first two years of this relationship (and another 5 years that haven't been hard work), that says that we're prepared to deal with a hell of a lot of emotional shit and work through many of the issues that often drive couples apart, but we've also seen how seemingly rational people can go completely bizarre apeshit, both in the context of a divorce, and in general. On both sides. And it turns out that courts are less likely to treat a prenup or similar agreement as binding if it includes emotional issues or household responsibilities or the like, so we're sticking to cold hard economics. Might draw up another document of intent, too, but not for legal reasons.

#Comment Re: made: 2007-08-20 23:53:56.332225+00 by: topspin

"Marriage is like putting your hand into a bag of snakes in the hope of pulling out an eel." ---Leonardo Di Vinci

You, sir, have made a damn interesting and successful life for yourself living in ways outside the norms of society. You've done that by deliberately avoiding or forgoing some things society would call "advantages" or "necessities" including a diploma, television, children, etc. in the interest of your personal sovereignty and sanity.

To quote you, Dan, when folks would yammer on about changing things in the world in some way or not becoming a statistic when stepping into one social arena or another, "I'd be careful there, the world has lots of momentum."

Certainly, you and Charlene have got something going there and I realize there are situations where the term "spouse" might grease your journey with Charlene, but..... get your bike, go for a ride to a nice point of contemplation and think about yourself and what got you there, Dan, and whether you wish to place your relationship with Charlene in the hands of lawmakers, judges, and attorneys.

#Comment Re: made: 2007-08-21 00:59:46.564469+00 by: Dan Lyke

Topspin, insightful as always. California has this interesting construct called a "Secret Marriage", where marriage isn't part of the public record. As we figure out how to structure things, that's a possibility.

Aside from the weight in a hospital of "that's my spouse" versus "I have papers here describing limited conservatorship in medical situations where the other person has been incapacitated, please examine them and let me have access", the other issue is that the savings from filing taxes jointly are enough that they're worth pursuing a bit, but small enough that they could be obliterated by accounting costs. The mulling continues, and I'm going to point Charlene to this thread.

#Comment Re: made: 2007-08-21 01:01:08.651704+00 by: Dan Lyke

And this also seems like time to pop in an Ambrose Bierce quote on the matter:

Marriage, n: the state or condition of a community consisting of a master, a mistress, and two slaves, making in all, two.

#Comment Re: made: 2007-08-21 03:54:35.762888+00 by: ebradway

Of course, there's the possibility of just saying your married - probably this "Secret Marriage" you speak of. A hospital generally won't question it if you self-identify as married. They also lack good means to validate your claims. The IRS really isn't much better. You can claim you got married in Grundy County, TN in 1993. I believe the courthouse burnt down in 1994 taking their big book of marriages with it.

But alas, if you act[Wiki] married, then the angered spouse could, in a divorce, contest that it was a de facto marriage. You might even encounter that with Ziffle's fancy LLC. Divorce is a nasty form of law suit and you don't really need solid grounds to file a nasty law suit. Further, many divorce lawyers are the kind of sharks who feed on the emotional anger and will turn even the best written prenup or legal work-around like an LLC into a big, nasty fight.

Again, I stand by my comments that you should just ignore the financial and technical legal BS. Just get married and make definite plans to deal with the emotions. A regular marriage provides all the legal benefits you want - power of attorney, hospital visitation, joint taxes, etc.

The argument that marriage is scary and ill-defined and thus should be avoided is like saying birth guarantees death, so why bother emerging from the womb?

Life can be scary and ill-defined. It can also be wonderful and breath taking!

#Comment Re: made: 2007-08-21 03:59:04.182406+00 by: ziffle

Eddie Murpphy said it well in 'Raw'

Everyones in love, then "I want half"

and you find her attorneys letter being handed to you, feeling like your own head on a platter.

Marriage and Children ruins relationships, in America, today.

#Comment Re: made: 2007-08-21 10:28:00.30448+00 by: jeff

Congrats, Dan and Charlene! After all of your time together, marriage should change very little between you two. Look at it as playing together on a teeter-totter in perfect balance on the same playground!


#Comment Re: made: 2007-08-21 13:59:02.139711+00 by: Dan Lyke

Eric, the "Secret Marriage" in California is actually for the reverse of that: It was originally set up (back in the late 1800s, I believe) for people who were living as though married, and for whom a public marriage would cause social issues. So you get the paperwork registered at the courthouse, but only the parties to the marriage can get copies of it.

Ziffle, exactly why, if we go this direction, we both want an ironclad prenup. It ain't about when both parties are feeling all lovey dovey and sane. What was it Rod Stewart said, something like "I'm not going to get married again, I'm just going to find some woman I hate and buy her a house"?

Jeff, that's another thing to be scared of. We don't want a marriage. We want the legal advantages of being married. Marriage, as the culture defines it, is something we both run screaming from.

#Comment Re: made: 2007-08-21 15:16:05.269211+00 by: Diane Reese

Would you care to elaborate on what you see as the culture's "definition of marriage", just so we're all on the same page here? (And so we can argue if we don't see the same definition? ;-)

And just to represent, Charlie and I marked our 20th anniversary earlier this month. There have been times in the last 20 years when I've wanted to run from him screaming, and times when he's been ready to duct tape my mouth shut, but we work through all those ugly rough places and get back to a pretty supportive place. And we are the parents of two young men we've raised and sent out into the world, and they're pretty darned amazing guys. And all four of us love each other, without a doubt.

I know it's not for you, but someone has to say that it *can* work. Maybe that's not the default condition nor result, but it's not unknown either. We're looking forward to reinventing our relationship with our children and each other yet again for the next 20 years.

Much contentment, whichever way you end up.

#Comment Re: made: 2007-08-21 16:24:11.754414+00 by: Dan Lyke

Diane, while I do denigrate marriage, I'm totally willing to accept that there are people for whom it works very well. Charlene's Dad and step-Mom are two such people. Heck, for many people, the popular culture works very well. Just not for me. And, Charlene tells me, not for her, either.

As for what "the culture's definition of marriage" is... well... I'm not sure, but I know it when I see it. A good portion of this discussion started when we were looking at moving for this other job, Charlene would have had to have taken a hit to her seniority and income at her job, and the way we both (independently) described it to other people was that she didn't want to become "Mrs. Dan Lyke".

Part of the discussion of considering that job was looking at what if our household income from my efforts alone rose substantially over our combined income? Would it be a good thing to sacrifice her independence for that? We could split the immediate income, but what sort of contract protections could we write into to account for the fact that she'd be altering her earnings potential? All of those questions fed into our talks about where we wanted the relationship to go.

You and Charlie don't have those pressures as strongly as we, with our disparate incomes, do, but the other thing is that, especially without children, neither of us believes in "forever". If it happens that way, great, fantastic even, but the relationship should exist only so long as it serves both of us, as long as the result of the relationship is greater for both of us than if we were pursuing our paths separately.

And the pressures are there, even if hidden. Jeff's congratulations up there, while obviously well meant, are a sign that the culture will expect certain things post marriage, in fact that we may expect different things. I know that I have a message when someone refers to Charlene to me as "your wife", as in "...I saw your wife around her ea moment ago..." and I say "oh, no, we're not married" (actually, usually I say "Traditionally when you get to my age you take a mistress. I skipped the marriage.").

So, I'm not sure what it is, but I know it when I see it, and I want to make very sure that whatever that is that we don't fall into it.

#Comment Re: made: 2007-08-21 18:08:15.980424+00 by: Nancy

I want to make very sure that whatever that is that we don't fall into it.

Oh, for God's sake. This whole conversation is starting to bore me.

I see you trying to figure out what you want, and that's great. But if you're going to define what you want based on what you don't want yet can't define, I'm outta here.

What I see is: you are opposed to 'society's definition of marriage.' There must be some overriding societal definitions of marriage (like it can only occur between a man and a woman.) I can't really think of any others except as they occur in the culture of the 50's: the man makes the money, the woman stays home and raises babies. Maybe I'm way off base (wouldn't be the first time) but I've never seen two marriages alike. And we've seen the societal definitions starting to change; some have already changed a great deal. I think the legal definition will follow as a matter of course, eventually. I'm of the opinion that the government massively overstepped its rights in denying the Mormons the right to practice polygamy, actually. But I digress.

What is it, exactly, that you are afraid of? "signing a contract the terms of which are largely hidden to us?" Or the emotional ramifications of a break up, marriage or no? No matter how 'iron clad' you make a prenup, the emotions are still gonna bite you, unless you are talking about people who have none. You want what you see as the benefits of marriage (hospital visitation, what-have-you) without the...what? What society expects? What is that, exactly?

I'm so confused but I haven't had sex for days now so I'm rambling more than usual, which is a LOT I know and probably getting bitchier than normal too


#Comment Re: made: 2007-08-21 18:38:14.503499+00 by: Dan Lyke

Nancy, yeah, that's why I didn't want this to be more than on the legal issues involved.

The cultural stuff? Well...

I don't want "'til death do us part". I cringe every time I see a couple light the center candle and then blow out their own.

What society expects? When you're not married and are having troubles, people ask "why are you still together?" When you're married, people say "suck it up and deal, sissy".

I want a relationship where I'm answering the question, not slogging through the demand.

#Comment Re: made: 2007-08-21 18:43:19.400972+00 by: Dan Lyke

And the emotional ramifications of a breakup? Yeah, they're gonna suck. They're gonna suck even more if one party can bring the power of a contract for which the terms are unclear down on the other with the full weight of the state behind it.

That's why I want the "divorce for people about to get married" guide, to figure out what that is. Because when I started this thread I thought it'd be a relatively reasonable thing, but as this thread has progressed I've been reminded of all of the subtle ways in which marriage as the default state defines the conversation, and all of a sudden taking the thousand or three dollar a year hit becomes reasonable.

#Comment Re: made: 2007-08-21 18:58:12.408772+00 by: Dan Lyke

Okay, maybe I can't define it, but perhaps you can: What's the difference between a wife and a mistress?

#Comment Re: made: 2007-08-21 19:23:20.80871+00 by: Diane Reese [edit history]

But what about those for whom the side candles stay lit along with the center candle (figuratively, or literally)? Or those for whom it would never occur for the female partner to be known as, or to allow herself to be identified as, "Mrs. Malename Hislastname". And there may very well be "disparate income" issues about which you are not aware.

You're making some gross generalizations about what it means to be married. Nancy has it right, no two marriages are alike. I bristle at thinking I may be lumped in with the masses in your thinking. We ain't like that, and marriage has worked for us.

And no, this is not a paean to marriage, and I don't mean to imply that it may be right for you. Just so we're clear on this. :)

#Comment Re: made: 2007-08-22 04:25:47.081936+00 by: topspin

Perhaps I should take this type of comment off-site and to email, but Dan I recall a relationship you had where you maintained (for the most part) a 50-50 split of things, though it meant you lived well below your means.... you lived within hers.

Somewhere this has changed, as you've defined a relationship where contributions feel equitable despite differences in income, but this format magnifies your risk in the event of a split. Not only would you risk losing financial assets toward which you've contributed the lions share, but also the emotional/other contributions which your partner brought to the relationship.

Now, both risk emotional assets equally... or if you can quantify those, have at it among yourselves. Fiscal assets, however, can reduce to formulas.... he brought X dollars in over the years, she brought Y dollars over those years.... percentage-wise, he's fiscally in this for X/(X + Y) * 100. Even if one complicates the process by taking some assets off the table or weighting various assets differently, things still work essentially mathematically when it comes to money. I've known you awhile, Dan, and you need our input related to this level of math like you need our input on forming 2 lines of unreadable regular expressions that perform the work of 28 lines of code...... exactly zero.

So, this ain't about money. This is about risk and deciding to take it. I recall a discussion we shared about taking risks, resolve, and making decisions. In that discussion, as I recall, we explored how once one has TRULY made a decision to take the risk, one finds a way to make it work for you despite whatever challenges present themselves; when one is being steered toward a risk, one can see obstacles clearer than the path around them.

I'd suggest you and Charlene continue to take runs at the decision and hammer out comfy guidelines, but don't act until the decision is truly yours and hers..... not pressured by financial planning issues, societal perks, etc. Getting pushed sucks..... whether it's someone or society or even circumstance which does the pushing.

#Comment Re: made: 2007-08-22 11:35:24.667514+00 by: Medley [edit history]

All below is IMO, of course, grains, salt, and all that...

I think topspin is right - there's some risk aversion here underlying your original question and it doesn't seem to be solely about economics, no matter your protestations up above. As for what sort of prenup makes sense, surely when very wealthy individuals get married, the sort of thing you're talking about is what their prenups "protect" them against - similar to topspin, I'm not sure I see what's difficult about finding a good prenup model. (Anecdote: TheSpouse and I talked briefly about a prenup before we got married but since neither of us had any assets at all, it didn't seem warranted.)

You want the legal advantages of marriage without the cultural baggage. Isn't one way to do that to get married and not tell anyone except in a context where it would accrue some legal advantage? (I'd miss the excuse for a party, but you know, I'm way over here on the other coast anyway, what do I matter? ;-) ) As you may know, TheSpouse and I were legally married for several months before we told most people just to get health insurance squared away. We were planning to have a public ceremony and be married anyway, so it's not completely analogous, but I don't see anything very strange with having the legal advantages be of paramount concern. (And our parlance is to refer to our 'legal wedding anniversary' and our 'formal wedding anniversary' - the latter being when we had the ceremony (no candles, though.))

I agree with you that there's a lot of baggage and expectation associated with marriage, but I don't agree with you that it's monolithic, the same everywhere, from every person, and in every context. So what I don't understand is the strong aversion to being 'subject' to society's expectations in this context versus being subject to society's expectations in other contexts. "Society" does what it does, and as my meditative friends tell me, it's all in managing our reactions to those expectations that determines how they affect us. In other words, you are only as subject as you allow yourself to be.

I also would suggest that being allergic to "Congratulations" uttered by friends who wish you contentment is probably an over-reaction. I've been congratulated upon purchasing a new car, after all. On my prickly days I might find myself, in such a situation, stewing over crass consumerism and an automobile-based culture and what that means for community, health and health care, and the planet, but on most days I'd just grin and and know that the car means to me what it means to me, regardless of how excited or indifferent my friends are about it. To be a bit cold and clinical...

As for the questions of 'why still together' versus 'suck it up' -- well, that dichotomy doesn't exist just for marriage in this Calvinist culture that ennobles suffering and the "American Way" of having to work 3 jobs to support oneself. On the other hand, nor do I think it's as pervasive as you seem to. So, similar to my previous question, why afford it any more weight in the marriage context than in others?

#Comment Re: made: 2007-08-22 13:18:36.972973+00 by: Diane Reese

Very well said, Medley. Why should one's reaction to (perceived) societal expectations in this realm be any different from one's reaction to other societal expectations one does not share?

#Comment Re: made: 2007-08-22 13:24:09.062112+00 by: Medley [edit history]

[deleted due to discover of edit feature ;-) ]

#Comment Re: made: 2007-08-22 15:49:21.32067+00 by: Dan Lyke

Re: prenup models. We've been going through a whole bunch of resources on prenups, yeah there are a lot of models out there, probably too many. Which is why we're both concerned. But we did a bunch more reading last night and I think we've got the details nailed down. It also looks like California's marriage model is a reasonable framework to work within, but if we moved out of state, especially to any eastern state, we'd have to consult a lawyer.

I think, as you point out, that the right way to do this is the prenup with what we know now and a "Secret Marriage". That'll keep us off the mailing lists, too.

#Comment Re: made: 2007-08-22 16:36:12.204246+00 by: ziffle

do they stll have palimony in CA?

#Comment Re: made: 2007-08-22 16:38:06.918616+00 by: ziffle

If you actually 'get married' even with a 'prenup' and you decide to take a second sister wife, it can be held against you, big time.

#Comment Re: made: 2007-08-22 16:52:12.817062+00 by: Dan Lyke

Giggle. Yeah, in California, section 285 of the penal code says:

285. Persons being within the degrees of consanguinity within which marriages are declared by law to be incestuous and void, who intermarry with each other, or who being 14 years of age or older, commit fornication or adultery with each other, are punishable by imprisonment in the state prison.

If I'm reading that right, we can drop the consanguinity stuff and rewrite that as:

285. Persons ... who being 14 years of age or older, commit fornication or adultery with each other, are punishable by imprisonment in the state prison.

Which means that it'd just be trading one state prison offense for another...

#Comment Re: made: 2007-08-23 00:36:13.539151+00 by: ebradway

I'm with Nancy on this - it's getting rather boring...

If you are too scared to get married, then don't get married. I've friends who have children together, own houses and businesses together, etc., etc., for decades without actually getting married. Marriage is scary and brings a level of hassle into the breakup. But so do many other things - like sorting your CD collection or who gets the good kitchen knives.

And rich people have prenups because they have legions of lawyers to back it up. A prenup won't prevent divorce nastiness.

#Comment Re: made: 2007-08-27 19:45:39.09719+00 by: Larry Burton

Dan, I've been traveling without time to read here often but I've got to add my two cents in here. My opinion is that marriage is a religious covenant between three entities, the two people getting married and God. It is my opinion that both the state and non-religious should stay away from this covenant.