Let's Talk Prenups

afrenchprincess

So do any of you all have prenups or would consider prenups? I know that even the word prenup can make people very uncomfortable. However, prenups can be about protecting your family or children (from previous marriage) in the unfortunate case of a divorce. Say you are part owner of a family business and if you divorce in certain states your former spouse could have rights to the family business. Yo want to protect your family's assests. What do you all think?
Secondly, I don't really think people go down the aisle thinking this is (prenup) is my get out of jail free card. But let's be honest all marriages won't last and yours may be one of them. Why not have a contract in place as protection?
Lastly, how does this sit with your religious and faith beliefs about marriage?

professorscience

I really don't think I would marry someone if I had even the slightest doubts that it wouldn't work.  Or if that person had doubts.  If my husband had asked me to sign a prenup I would have been beyond hurt and I would have backed out.

Granted, I don't have family assets or some huge inheritance to consider, but even if I did, I've committed myself to my husband before God, and I intend to keep that committment.  We took our time deciding if marriage was the right path for us, and once we became engaged, we spent even more time preparing ourselves for the struggles we will face.

agapecarrie

A prenup automatically invalidates a marriage. One cannot have a prenup and get married in the Catholic church.

The word divorce should not be in the vocabulary when entering marriage.

newlyseliski

 I know that I would personally never even consider one for the same reasons that professorscience mentioned above.  Sacramental marriage is a serious and permanent commitment... hence all the marriage preparation that my husband and I undertook during our engagement and all the discernment during our relationship!  Marriage isn't easy... God didn't promise honeydew and gumdrops for the rest of our lives, he asked us to take up our cross and follow Him.  There are good times and beautiful things in a marriage... but there are also job losses, expensive medical emergencies, miscarriages, arguments, cars breaking down and at worst, infidelity. Both husband and wife must be wholeheartedly committed to their marriage and put their vocation first... a prenup is a very large string attached!

Prenups are frowned upon and also grounds for invalidating a marriage.  I didn't do very in depth research... but did find this tidbit on Wikipedia that seems to be a good summary of the Church's position:

In practice, prenuptials may run afoul of Church law in a number of ways. For example, they cannot subject a marriage to a condition concerning the future (such as an agreement about the dividing of assets in case of divorce). The Code of Canon Law provides: "A marriage subject to a condition about the future cannot be contracted validly." (CIC 1102)

The Canon Law: Letter and Spirit, a commentary on canon law, explains that condition may be defined as "a stipulation by which an agreement is made contingent upon the verification or fulfillment of some circumstance or event that is not yet certain." It goes on to state that "any condition concerning the future attached to matrimonial consent renders marriage invalid." For example, a marriage would be invalid if the parties stipulated that they must have children or they have the right to divorce and remarry someone else.

Here's a good Catholic Answers forum thread on the topic as well:
http://forums.catholic.com/showthread.php?t=202417

catarntina

In Response to <a href="http://forums.theknot.com/Sites/theknot/Pages/Main.aspx/cultural-wedding-boards_catholic-weddings_lets-talk-prenups?plckFindPostKey=Cat:Cultural%20Wedding%20BoardsForum:615Discussion:6c84db57-a4b9-4d2f-bf52-8b5e591b2449Post:7eb4968c-24ac-4a9b-951c-d7ec33f4a50b">Re: Let's Talk Prenups</a>:
[QUOTE]A prenup automatically invalidates a marriage. One cannot have a prenup and get married in the Catholic church. The word divorce should not be in the vocabulary when entering marriage.
Posted by agapecarrie[/QUOTE]

This is not necessarily true.  You can have a pre-nup without divorce being mentioned.  Example... My uncle lost his wife, he had 3 children with her.  He met another woman and is willing to marry her if she signs a pre-nup stating in the event of <em>his death</em>, his children get his money.  (I don't know why that can't be handled in a will)  That would not invalidate a marriage because it's in the event of his death, thus not breaking any marriage vows.

If your pre-nup states that in the event of divorce, that's invalid.  And I would never sign something like that.

professorscience

In Response to <a href="http://forums.theknot.com/Sites/theknot/Pages/Main.aspx/cultural-wedding-boards_catholic-weddings_lets-talk-prenups?plckFindPostKey=Cat:Cultural%20Wedding%20BoardsForum:615Discussion:6c84db57-a4b9-4d2f-bf52-8b5e591b2449Post:b2285bf0-010b-49dc-9ef9-d4fb6aced87a">Re: Let's Talk Prenups</a>:
[QUOTE]In Response to Re: Let's Talk Prenups : This is not necessarily true.  You can have a pre-nup without divorce being mentioned.  Example... My uncle lost his wife, he had 3 children with her.  He met another woman and is willing to marry her if she signs a pre-nup stating in the event of his death , his children get his money.  <strong>(I don't know why that can't be handled in a will) </strong> That would not invalidate a marriage because it's in the event of his death, thus not breaking any marriage vows.
Posted by catarntina[/QUOTE]

<div>That is a little odd, but I guess it's because wills are usually signed by just the one person, and they can be contested pretty viciously (see: Huguette Clark).</div>

afrenchprincess

Can a will protect your family's assets? Anybody know? This is to protect family or children business and assets.

ElisabethJoanne

Our clergy actually encouraged pre-nups. For us, it's about 2 issues not having to do with dissolution of the marriage ("divorce" is not the proper legal term anymore).

First, the prenup process requires a thorough disclosure of each person's financial situation. Theoretically, we should be able to do this on our own, or in religious pre-marital counseling, but we're not finding either complete enough. (We both have graduate degrees in finance-related professions, so we care about the kind of loans and the precise interest rates, not just amounts, etc.)

Second, as others have mentioned, we might want agreements in case of death. These are actually barely binding. You usually need a will executed after the wedding, but it can be good to have the conversations before the wedding, and form the relationship with the lawyers, and start the process.

ElisabethJoanne

We haven't contacted a lawyer (besides me) yet, actually. We told our Priest we wanted to front-load the pre-marital counseling so we could decide whether we wanted to talk with a lawyer after talking with him. My future husband used to own a business with a partner, but his partner dissolved the partnership. Before the end of the partnership, I would have insisted on a pre-nup (or estate-planning equivalent) to protect the partner and myself from the hassle of my possibly inheriting my husband's share in a small business totally outside my area of expertise. Now, I'm not so sure it's worth the expense. Also, my future husband is getting a bit freer talking about money with me.

[All this makes it sound like we can't talk about money, when really, I think we talk about money more than most young couples. It's just our professions and personalities make us want to drive the topic into the ground.]

To get back to the spirit of your questions, whether you have a pre-nup or not, you should investigate the legal/civil aspects of marriage proportional to your investigation of the religious/spiritual aspects. Of course the spiritual aspects are more important, but marriage has all kinds of crazy legal consequences, and just like we do pre-Cana or Engaged Encounter or one-on-one counseling for the Sacrament, some study of the legal contract is prudent.

Hmm. For every other license issued by the government - boating, driver's, fishing - there are low-cost and free programs explaining them before you get them. Maybe our family courts wouldn't be so crowded if non-religious organizations at least offered classes on the non-religious aspects of marriage.

afrenchprincess

Thanks Elisabeth! After the financial investigation by you and your fiance did you continue and get the prenuptial agreement? Or was the information you both found out about each other suffice enough?

afrenchprincess

Thanks so much Elisabeth! Sorry the questions got added at the end because my computer accidentally deleted it and I had to do it again. Thanks so much!

ElisabethJoanne

Posts are posting in a funny order.

There are ways of protecting family assets with wills and trusts. Over-simplified, a will takes care of whatever you own when you die, regardless of whether you owned it when you signed the will. Most states, however, require that all community property go to the surviving spouse, plus some amount of the deceased spouse's separate property, unless there is a pre-nup or post-nup waiving that right.

Example 1: My parents are alive and own a house. I marry with no pre-nup or post-nup. I execute a will that says something like, "Any real estate I inherit from my parents is bequeathed to my sisters, share and share alike." My parents die. I inherit the house. I never have any children. I die after 10 or more years of marriage with $200,000 in separate property, including my parents' house, valued at $100,000. My sisters will get the house, not my husband, because my spouse is only entitled to half my separate property.

Example 2: If, however, the house made up more than half of my separate estate when I died, things would get complicated between my sisters and my widowed husband.

In Example 1, my sisters are free to sell the house immediately after my death, and each sister is free to sell her half immediately. I've kept the house from my husband, but I haven't kept it in the family, necessarily. To keep it in the family, that is, make it hard for my sisters to sell the house, the family would need more than a will. The house would have to be held in trust, realistically, for my parents' descendants, that is, me, my sisters, and our children. Through a trust, it's pretty easy to keep property in the family for about 100 years after the death of whoever makes the trust, which can be part of a will or estate plan. In some states, this can go on forever.

Sorry. Long lawyer's explanation. In short, a will, or a will+a trust, can generally keep property in a family for a long period of time.

Warning: Even though it's possible, PLEASE don't do this with a business or real estate. People have these lovely daydreams that after they're gone their children and grandchildren will continue enjoying the family cabin, or continue running the family business, for generations to come. But it just takes one person who's not interested and wants to cash out to run up hundreds of thousands of dollars in legal fees. Also, it makes what is often a family's biggest asset completely untappable for emergencies. I'm speaking from painful professional experience. A house was left to 4 adult siblings in equal shares, with restrictions on selling it. One got sick without insurance, and needed to liquidate everything she owned to pay her medical bills. She couldn't sell her share of the house, and it's caused the absolute worst of family bad feelings.

I have read about it working alright with cash, stocks, bonds, and other more liquid, less personal assets.

agapecarrie

The OP mentioned in case of divorce. 

It is Impossible (priest allowed or not) to enter into a valid marriage if there is a pre-nup with a condition for divorce. It will not be valid. Canon 1102.

If a priest is encouraging this, find another priest, and report him to the Bishop. It's that serious.

afrenchprincess

Agape it's that serious to have a priest investigated when you are trying to protect your family assets and property?

mica178

There are different types of prenups, and some are okay by the church, others are not.

For example, when JFK Jr. got married, he had a prenup that guaranteed a certain amount of alimony to his wife based on the number of years they were married prior to divorce.  That's not okay at all since it is focusing on financial settlement with regards to divorce.

However, there are prenups based on family trusts and pre-existing children that are there to protect interests mostly in the case of death, not divorce.  Those are probably okay.

agapecarrie

In Response to <a href="http://forums.theknot.com/Sites/theknot/Pages/Main.aspx/cultural-wedding-boards_catholic-weddings_lets-talk-prenups?plckFindPostKey=Cat:Cultural%20Wedding%20BoardsForum:615Discussion:6c84db57-a4b9-4d2f-bf52-8b5e591b2449Post:7c05c4e1-847b-4a98-baa8-b7736a2be009">Re: Let's Talk Prenups</a>:
[QUOTE]Agape it's that serious to have a priest investigated when you are trying to protect your family assets and property?
Posted by afrenchprincess[/QUOTE]

<div>protect from whom? If you are "protecting" yourself from your future "spouse" there is an enormous problem with the mentality entering into that marriage... a priest that is encouraging a condition, which the canon that I quoted is expressly forbidding, is knowingly administering at invalid marriages. This is a huge huge problem.</div><div>
</div><div>
</div>

afrenchprincess

Thanks for sharing Elisabeth you make a lot of sense in what you are saying because if property is owned between my siblings and I that is family property and my husband decided to divorce me I want my siblings protected from something that is not their fault. I will also look into alternatives ways of going about this with an attorney. Thanks!

Calypso1977

i also dont get why a will wouldnt simple real estate/inheritance.  that stuff is pretty clear cut.

when my in-law's die, my husband and his siblings get their homes.  wehn my mom dies, me and my sister get her home.  if i divorced my husband, his name is not any where in their wills.  i dont know how he'd have any legal claim to my mothers estate nor would i have any claim to his parents estate.

honestly, even if my marriage ended in divorce i know that my husband is not the type that would never go after something that's rightfully mine and vice versa.  he also knows my personality and knows that if he did try to go after something id fight back twice as hard and win.  LOL

the things i dont think a will wouldnt cover is the financial interests gained from something like a family business, investments or a pension.   meaning, if husband X lived a certain level lifestyle because of the profits of wife Z's shares of a family business, he my be entitled to continue that same leve of lifestyle after the divorce. the only way wife Z may be able to provide that is if she signs over Y shares of that business to him.      or if wife Z stayed home to raise children and husband X had a job with a pension that wife Z was counting on for her retirement as well - she may be entitled to a portion of that pension or a payout from that pension since she was unable to save for retiremetn as she was home with children.

Riss91

I would think that contractually, a pre-nup is not the way to go here. If you are protecting your siblings, then there should be a will or other contract for the business/trust that dictates how the business is divided. Basically, a prenup proves that you do not trust your future spouse. So, why would the Catholic Church want to validate a marriage in that case?

Like others have said, your marriage is not valid if you enter into the marriage with the consideration that it may not be permanent. Below are the related laws:

Can. 1096 §1. For matrimonial consent to exist, the contracting parties must be at least not ignorant that marriage is a permanent partnership between a man and a woman ordered to the procreation of offspring by means of some sexual cooperation.

Can. 1101 §1. The internal consent of the mind is presumed to conform to the words and signs used in celebrating the marriage.

§2. If, however, either or both of the parties by a positive act of the will exclude marriage itself, some essential element of marriage, or some essential property of marriage, the party contracts invalidly.

Can. 1102 §1. A marriage subject to a condition about the future cannot be contracted validly.

debbiem56

A couple of things as I do this for a living -

A spouse in our state can "take against the Will" that is, even if you leave it to someone else, the spouse is entitled to a certain amount of your estate.

If you inherit real estate property from your family, your spouse may have a dower interest in the property even though his name is not on the deed.

Pre-nups are beneficial (and allowed by my parish priest) when you have children from a prior marriage, as we do.  We agreed upfront in honest discussions and as part of our premarital counseling what we would leave to each other and what we would leave to our children.

Pre-nups can be used validly in anticipation od death not divorce.

banana468

What if the pre-nup has nothing to do with the case of a divorce but simply outlines who is allowed access to funds?

Example: One spouse owns a business - prenup is organized so there is understanding from the beginning that the business is owned by both partners and not their spouses?

I'm not a lawyer but I'm not understanding why the pre-nup has to mean pre-divorce.

professorscience

In Response to <a href="http://forums.theknot.com/Sites/theknot/Pages/Main.aspx/cultural-wedding-boards_catholic-weddings_lets-talk-prenups?plckFindPostKey=Cat:Cultural%20Wedding%20BoardsForum:615Discussion:6c84db57-a4b9-4d2f-bf52-8b5e591b2449Post:3bf5cdcf-34cb-4bc7-99b1-73be1e2e16e3">Re: Let's Talk Prenups</a>:
[QUOTE]What if the pre-nup has nothing to do with the case of a divorce but simply outlines who is allowed access to funds? Example: One spouse owns a business - prenup is organized so there is understanding from the beginning that the business is owned by both partners and not their spouses? I'm not a lawyer but <strong>I'm not understanding why the pre-nup has to mean pre-divorce.</strong>
Posted by banana468[/QUOTE]

<div>I think OP is the only one who has brought it up in the case of divorce, in which case, it could serve as grounds for invalidation.</div><div>
</div><div>frenchprincess: as other posters have said (and you give me the impression you're not completely reading what everyone has said), pre-nups that are preparation for divorce (meaning: have a clause that says, "This will happen if you divorce me") are not good.  Pre-nups that are preparation for death of one spouse or the other are not so bad.</div><div>
</div><div>I know divorce happens, even to Catholics who go through all the marriage prep.  I just think it is a huge flag that says, "I DON'T TRUST YOU."</div>

lalaith50

Even if I were trying to be extra cautious and "plan for the future" (since we all agree that divorce does happen, even to people who never think it will be them,) I think it's crazy to marry someone who you don't trust enough that you would even wonder if they would go after any of your money.

Resa77

Eye to eye, Lalaith.

banana468

In Response to <a href="http://forums.theknot.com/Sites/theknot/Pages/Main.aspx/cultural-wedding-boards_catholic-weddings_lets-talk-prenups?plckFindPostKey=Cat:Cultural Wedding BoardsForum:615Discussion:6c84db57-a4b9-4d2f-bf52-8b5e591b2449Post:a38037e4-9573-4c51-b5a1-ef639c4eba98">Re: Let's Talk Prenups</a>:
[QUOTE]Even if I were trying to be extra cautious and "plan for the future" (since we all agree that divorce does  happen, even to people who never think it will be them,) I think it's crazy to marry someone who you don't trust enough that you would even  wonder  if they would go after any of your money.
Posted by lalaith50[/QUOTE]

What if it isn't about that though?

I guess my point is, what if you're owning a business and your partner gets married.  Then the pre-nup would be a requirement to ensure that the business is between the two people involved and not their spouses.

My point is that while the original post involved a pre-nup in the event of divorce, I don't know that it's all that practical to avoid when you're talking about making sure that assets are drawn up correctly.

In the event of a joint business ownership, the co-partner needs to be protected.  The B&G may trust each other but does that mean that the business partner has to trust the B&G as well?

My phrasing may be confusing.

debbiem56

In Response to <a href="http://forums.theknot.com/Sites/theknot/Pages/Main.aspx/cultural-wedding-boards_catholic-weddings_lets-talk-prenups?plckFindPostKey=Cat:Cultural Wedding BoardsForum:615Discussion:6c84db57-a4b9-4d2f-bf52-8b5e591b2449Post:979fdf35-b8b6-4dec-9082-a8762b55dd12">Re: Let's Talk Prenups</a>:
[QUOTE]In Response to Re: Let's Talk Prenups : What if it isn't about that though? I guess my point is, what if you're owning a business and your partner gets married.  Then the pre-nup would be a requirement to ensure that the business is between the two people involved and not their spouses. My point is that while the original post involved a pre-nup in the event of divorce, I don't know that it's all that practical to avoid when you're talking about making sure that assets are drawn up correctly. In the event of a joint business ownership, the co-partner needs to be protected.  <strong>The B&G may trust each other but does that mean that the business partner has to trust the B&G as well?</strong> My phrasing may be confusing.
Posted by banana468[/QUOTE]

Exactly.  The prenup or any other financial agreements are useful when there are possibly third parties involved, be it business partners, parents and siblings, or children and step-children.

ElisabethJoanne

In Response to <a href="http://forums.theknot.com/Sites/theknot/Pages/Main.aspx/cultural-wedding-boards_catholic-weddings_lets-talk-prenups?plckFindPostKey=Cat:Cultural%20Wedding%20BoardsForum:615Discussion:6c84db57-a4b9-4d2f-bf52-8b5e591b2449Post:50673a88-d212-4945-95ee-e4250bdffe29">Re: Let's Talk Prenups</a>:
[QUOTE]A couple of things as I do this for a living - A spouse in our state can "take against the Will" that is, even if you leave it to someone else, the spouse is entitled to a certain amount of your estate. If you inherit real estate property from your family, your spouse may have a dower interest in the property even though his name is not on the deed. Pre-nups are beneficial (and allowed by my parish priest) when you have children from a prior marriage, as we do.  We agreed upfront in honest discussions and as part of our premarital counseling what we would leave to each other and what we would leave to our children. Pre-nups can be used validly in anticipation od death not divorce.
Posted by debbiem56[/QUOTE]

This.

ElisabethJoanne

Regarding Riss's bolded Canons, I'm not a canonist, but I've read from canonist that even a Protestant saying "I intend to get a divorce if I stop liking him" when marrying a Catholic did not invalidate the Sacrament. Something like she didn't plan on not liking him, and she acknowledged that marriage was supposed to be sacramental and permanent. You can read all sorts of interesting stories in a book by John Noonan.

As a civil lawyer, I don't understand how a pre-nup creates a condition about the future. It's not an expected condition, necessarily. Marriages that have been invalidated were ones where money was to change hands after the wedding - dowries gone wrong. Everyone's in agreement that pre-nups regarding death, which are basically contracts about wills, are OK. Yet death is a certain future condition within the marriage.

Then there's the whole civil v. sacramental character of marriage. Making agreements about the civil aspects of marriage might be separable from the sacramental realities. Obviously people can be civilly married without being sacramentally married (same-sex marriages), and people can be sacramentally married without being civilly married (divorce following sacramental marriage, no annullment).

agapecarrie

Death is not a future condition of marriage. Death ends a marriage.

Also, you are using the word sacramental wrongly. Catholics may enter a marriage through the church, but it may not be sacramental if the other person is non-bapitzed. This may not be pertinent to the discussion now, but it may become so later. 

The whole premise of your 3rd paragraph illustrates the issues of having civil marriages that do not follow natural law. 

Annulments look at the time of the marriage, NOT things after the marriage (although these things may show evidence). 

A valid marriage must be free, total, faithful and fruitful. ANY marriage (not just Catholic ones, or sacramental ones). When there is conditions placed, it is no longer free and total.  

afrenchprincess

Ok a few things I DO trust my spouse! That is not what I am saying. I am saying that other people are involved in my business/financial life besides my FH and I. And they and I wish to protect them if a divorce was to occur. No I or many others that I know go in to marriage saying when  "I get divorce..." I am saying more about protection of assets. People let's not live in fantasy land people change if an unfortunate divorce was to come about and secondly people may not do things out of spite or to be mean but they may do it because they feel entitlled as they were the former spouse. I am talking legalalities.

ElisabethJoanne

Here's what I know is invalid: Bride will wed Groom, then Bride will pay Groom a peppercorn. If Bride does not pay Groom the peppercorn, Groom will marry another.

That's not what pre-nups say. Pre-nups say: Bride will wed Groom. If, after they are wed, either or both seek dissolution of the marriage, Groom will pay...

In the first, the intent to contract is only if an extraneous condition is paid. In the latter, their is an intent to contract, but in the un-hoped-for event, then there's a fall-out. (Condition precedent v. damages in case of breach) I also don't see how this pre-nup differs substantially from what I know is valid, which is a bride saying she retains the right to a divorce if she stops liking the groom. If the marriage is still valid while one party is acknowledging the possibility of divorce out loud, what does financial arrangements add to that acknowledgment?

Sure, there's problems when the civil law does not follow the natural law, but it doesn't change the natural law or the canon law. The highest Canon Law tribunals have decreed that a Catholic can marry a Protestant in the Catholic Church; the Protestant can obtain a civil divorce and a civil second marriage; and yet the original couple is still sacramentally married, or still married in the eyes of the Church. Please enlighten me on what the distinction might be in those circumstances between sacramentally married and married in the eyes of the Church.

"Fruitful" also needs fleshing-out here.