I can’t resist commenting on the recent drama with Weiner, Schwarzenegger and Edwards. Could a carefully crafted pre-martial agreement have reduced the likely fallout? Pre-marital agreements, by definition, prepare for the unexpected. No one ever thinks they will divorce when they get married. But most intelligent people know life is hard and it’s reasonable to expect the unexpected. Whether or not “love children” are reasonable to expect is a different question.
Without a pre-marital agreement, Texas courts typically order a fifty-fifty community property division. Fifty-fifty seems presumptively fair except no two divorces are alike and often times people make disproportionate amounts of money, incur different amounts of debt and make different career sacrifices for their family. And sometimes a spouse has independently caused the break-up of the marriage. I’ve heard rumors that Michael Douglas and Katherine Zeta-Jones have a pre-marital agreement that provides for a disproportionate share of their estate to be awarded in the event of infidelity.
With the rise of second marriages and children having more than one parent, it seems that pre-marital agreements should be standard and not just divorce planning for the rich. If your career suffers so that you can raise your spouse’s children, is your spouse going to provide for your children in their will? If your spouse has a significant amount of separate property and you are married for twenty years, shouldn’t some of that separate property be re-characterized as community property? If you and your spouse have agreed to go to counseling before filing for divorce, why not put that in writing?
There are so many options for tailoring a pre-martial agreement to you and your spouse’s specific needs. The only major exception is that you cannot eliminate the need for child support in a pre-marital agreement. Otherwise, if you and your fiancé have any important agreements on how your marriage will function, consider speaking with your attorney about a pre-marital agreement.