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Prenuptial Agreements are agreements between a man and a woman prior to marriage guaranteeing each other certain rights. The major element of a pre-nup concerns limiting the liabilities of each party to the other in case of divorce. Because a pre-nup is only a piece of paper until admitted into evidence by a divorce court judge, they are often worthless.
To be enforced, a pre-nup must be judged as valid by the divorce court judge, euphemistically called “family court.” A pre-nup can be rejected for many reasons including violation of county, state, or federal statute, claim that the pre-nup was signed under duress or under limited mental capacity, claim that the terms were not clearly explained, and so on.
Furthermore, the judges in divorce court are at the bottom of the ladder. They are the poorest judges, least qualified, and least educated. The best judges are in felony criminal court and courts that adjudicate large lawsuits such as corporate actions or class-action lawsuits. Incompetent judges get thrown into divorce court. As a result, the pre-nup can be rejected simply because the judge doesn’t understand the issues. In addition, since the dumbing down of bar exams to allow certain minorities and women entry into the bar, the judges may let personal bias, favoring one or the other party, usually the woman, interfere in their judgment.
This is particularly the case in West Virginia, Mississippi, Alabama, and Illinois, the states with the worst judiciaries in the nation, with judges literally able to buy their judgeships or acquire them by family connections to powerful elected individuals.
Who benefits from pre-nups?
The parties, the man and woman contemplating marriage, often secure the services of a divorce lawyer to draft the pre-nup. Fees can become many thousands of dollars. Once the pre-nup is signed and the fee paid, the lawyer is no longer part of any proceedings. In particular, he will generally not be called to testify once a divorce is initiated. The document stands for itself. The aggrieved party cannot sue that lawyer for damages if a divorce is filed and the party suffers severe losses, monetary, domicile, other assets, or child custody.
In many cases, as noted, the document is deemed inadmissible.
In short, the only person who wins is the divorce lawyer.
A case study
In one case that is typical, a man and woman, both lawyers, had a pre-nup drafted. They both employed lawyers for the purpose. The man, in particular, used a $600/hour lawyer from one of the biggest law firms in the country. It cost him $12,000.
When the wife sued for divorce after less than 10 years of marriage, they went before a judge who was “untouchable.” He had the goods on someone powerful. He never was elected a judge, never had to stand for re-election, and had no experience. His total legal background was to write condo agreements.
When the pre-nup was presented, he said, “This is my court and I don’t accept pre-nups.” That was it. The man went to the appellate court at additional cost, and the decision of the judge was affirmed without discussion. He was “untouchable.”
Nearly $20,000 in legal fees thrown to the wind because of a corrupt, incompetent divorce judge.
Pre-nups are routinely ignored for a variety of reasons. Unless you like paying divorce (“family”) lawyers large fees, don’t waste your time and money on pre-nuptial agreements.
Because 55% of all marriages in the U.S. end up in divorce court, the best advice is simply don’t get married. Keep your money separate from that of your spouse. Even then, a suit for palimony can be presented but at least no marriage certificate exists to establish dependence and support.