What Men Should Understand about Marriage and Family Law
1 Preface
It is worth noting that I have been twice married and twice divorced. I have nothing to be personally bitter about with respect to the outcome from the two women who divorced me. I was lucky to have married women that were neither mercenary nor unwilling to sign a prenuptial contract. Some combination of basically decent wives and the prenuptial contracts meant that I was not personally skewered by family law. Of the two, basically decent wives is probably the more important part of the protection, as prenuptial contracts can be thrown out by a court. Neither ex-wife tried to have the prenuptial contract thrown out.
There has been some talk of a "marriage strike" with people avoiding marriage. It is not necessary to avoid marriage. Like any contract though, it is necessary to understand the contract and to ensure that the contract is fair. Just as no one should sign an unfair real estate contract, no one should sign an unfair marriage contract. Instead of childish whining about how unfair the default marriage contract is, be an adult and negotiate a mutually acceptable marriage contract.
This was written based on my experience, so some things may be out of date. In particular, much of the discussion assumes that the man is the wealthier spouse; this is increasingly not the case. Women also can get screwed by what they do not understand about family law if they are the wealthier spouse.
To be clear, there are negative implications for many women in marriage and family law. While many of the negative implications may be similar for women as men, there may also be some implications that are either far worse for women, or perhaps unique to women. I do not pretend to understand all of the negative implications for men nor especially for women. I make no assertions that family law is always worse for men than women. My only experience with family law has been as a man. Someone more qualified than I can speak for women.
2 Love is Romantic, Marriage is a Contract, Do NOT Confound the Two
One of the things that is dishonest and deceitful is when something is presented as something that it is not. In practice, marriage is a prime example.
1. Marriage is nominally a commitment "til death do us part." This is largely nonsense at least 50% of the time. In many states (most?) it is simply until there are "irreconcilable differences." It would be more honest just to have the contract say "til irreconcilable differences."
2. Women say they want a long term committed relationship, by which they typically mean marriage. On the other hand, women instigate the divorce 2/3 to 3/4 of the time. I am not sure exactly what to make of this. One guess is that some women expect a fairy tale and men do not often provide fairy tales. I have no idea whether that guess applies to 0% or 50% of the women instigating divorces. Caveat emptor on the "commitment" statements. Many women are, and stay, serious about "commitment'." Many do not stay so serious.
3. Divorce because she cannot stand the snow, even though she agreed before marriage to move to a place that snowed.
4. Divorce because she does not feel treated the way she wants to be treated. If you really loved her you would ...
5. Divorce because the husband had an illness and could no longer earn as much money.
6. Divorce because she doesn't like living in a small town.
7. Divorce because she had very different ideas of what marriage, vows, promises, compromises, deals, and commitments meant.
8. Divorce because now she doesn't want to keep up her end of deals, compromises, and promises made so she could get what she wanted in the past. Things are different now and the deals, compromises, and promises don't apply anymore for some contrived laundry list of reasons.
9. Divorce because you won't take a promotion, that would pay better, because you don't like the duties, working hours, etc.
10. Divorce because you won't accept that marriage is like stock ownership and she has more than 50% of the votes. Therefore, she always outvotes you on anything she cares about.
11. Divorce because she is bored.
12. Divorce simply because "she has grown"
13. Divorce because when she married you you were making more money than she was making and you were a positive asset to the marriage, but now she is making more money than you are and you are now no longer a positive asset.
3 Thoughts on How Marriage Contracts Should Be
In following sections I am going describe the difficulties associated with ensuring that marriage does not become a mercenary affair. One of the essential problems is that there really isn't a standard written marriage contract. Even if there were a standard written marriage contract, it is likely that this contract would be unsuitable for many people who were getting married.
One can, of course, get a prenuptial contract written. There are problems with prenuptial contracts
1. Often, one person (R) has a lot of assets to protect and one person (P) has very few or no assets to protect. Despite logic to the contrary, P often feels forced to sign a prenuptial contract.
2. The state doesn't supply a set of standard prenuptial contracts for different situations. Thus, any prenuptial contract will almost always be specially written and unique. A court, in it's infinite wisdom, may often void a contract that R and P signed as appropriate to their situation without violating any precedent because there is little precedent on this unique contract. The court may then, ex post facto, make a divorce property settlement based on terms that R never would have agreed to.
3. To make matters worse, R cannot get a legal determination in advance of whether the prenuptial contract would be acceptable to the court.
An obvious solution is to have perhaps a dozen standard state marriage contracts, specified in writing, with a description of the type of situations each contract was intended to cover. A couple getting married could then choose either one of the standard state contracts or (if they dared) they could supply a special prenuptial contract of their own. If things were done this way, R and P could discuss and choose the standard marriage contract most suitable to their situation. P would not need to be confronted with a special prenuptial contract written especially for R and P. If this were the standard procedure, P could not reasonably "feel forced" to sign a prenuptial contract. If R and P cannot agree on which of the standard state contracts to choose, then probably there are already "irreconcilable differences" and the couple can simply not get married and avoid a likely future divorce based on "irreconcilable differences." If some clever lawyer found some outlandish way to attack any of the standard state prenuptial contracts, then the standard contract could be rewritten to prohibit such an outlandish attack in the future. R would have to be extremely unlucky to be the person involved when a standard state prenuptial contract is successfully attacked.
I have a little experience (3-6?) with how women react to the suggestion that there should perhaps be these 12 standard written contracts. When I mention how unfair the standard marriage contract is to many men, women often pipe up and mention a number of ways that the standard marriage contract is also unfair to many women. The amazing thing is that most of the women who give examples of why the current system is
also unfair to many women don't see their examples as
additional reasons to change a system that they have just claimed is unfair. Perhaps a more knowledgeable person will someday explain this to me.
4 Standard Marriage and Prenuptial Contracts
1. Marriage is always a three party affair, with the state being one of the parties. In many ways, the state is the most important and powerful party. For example, in a divorce the state will ensure that the state takes on no burdens.
2. The default marriage contract is not well defined. In particular, legal standards and principles for property division and spousal support during divorce vary with location and time. Almost anybody with assets needs a prenuptial contract to protect assets from a mercenary legal system. If happily ever after occurs, then everybody is living the fairy tale and property division is moot. In the roughly 50% of marriages that fail, property division is extremely important.
3. With or without a prenuptial contract, marriage is a contract. The purpose of a prenuptial contract is to ensure that the marriage contract is fair and agreeable to both the man and the woman.
4. Historically, cultural influences and laws tended to pressure men into getting married rather than just living with a woman with no future obligations. The laws seem (to me anyway) designed to "protect" women (sometimes whether a woman wants the protection or not, see shotgun wedding). Consider that even when a man refused to get married there were attempts to claim that a relationship that explicitly avoided marriage was either a de facto marriage (see common law marriage) or similar enough (see palimony) to give the woman a financial claim on the man. Stated in list form, these pressures include:
a. Why buy the cow if the milk is free?
b. Shotgun weddings (The woman might not even really want this, but the society sometimes forces it.)
c. Common law marriage (What fraction of common law marriages claims were made by men?)
d. Palimony
e. Marriage by signing a motel register as "Mr. as Mrs." because some motel owners would not give unmarried couples a single room.
5. The standard contract is sometimes unfair to some women and sometimes unfair to some men.
6. Money rarely flows uphill. Family law essentially looks for various "reasons" to justify taking money from richer person R and giving the money to poorer person P. The "reasons" are often specious in the sense that if P does something that benefits R, then family law wants to "compensate" P, but if R does the same thing that benefits P, then family law is unlikely to compensate R. The bottom line seems to be that P must profit after divorce in some way simply because P married R.
P married well.
7. The standard laws tend to treat marriage as an "investment" in which P can usually financially profit, but almost never lose. The laws are changing, but there is still the sense that P is
entitled to maintain the standard of living established during the marriage. Note that if P1 marries P2 and they are financially comparable, then not only does P2 not benefit financially during the marriage, P2 does not benefit financially in a divorce. On the other hand, if P marries R then not only does P get financial benefits and a higher standard of living during marriage, P also benefits if P divorces R.
8. Given the item above, in some sense the wonder is that more women don't view marriage as an investment.
9. Given that the laws tend to treat marriage as an "investment," it should not be surprising that some women view marriage as an investment. Note that some unmarried women use the phrases "he is a good catch" and/or "he has potential." I have often been told or overheard these things, but I have never heard them applied to a man on the lower end of the financial scale. (When I mention this observation to women, there is usually a defensive response and some case is brought up as a counterexample. Perhaps so, but it doesn't change my observation so far. Perhaps some day I will hear these phrases applied to, for example, a very nice, considerate, loving, and handsome janitor and will have to modify my assessment of these phrases.)
Other common phrases related to marriage as an investment:
a. It is just as easy to fall in love with a rich man as a poor man.
b. It is cheaper to keep her. (Usually said to indicate the law will plunder a man in a divorce.)
c. Why buy the cow if the milk is free?
10. These notions are changing, but some women still complain about it being "unfair" that in a divorce a man's standard of living increases while a woman's standard of living decreases. Note that his standard of living was depressed during the marriage because he was increasing her standard of living. What does "unfair" really mean in these complaints? In many cases it simply means that it is not enough that she enjoyed tremendous financial benefits during the marriage, she wants those benefits to continue even if she decides to divorce. There are perhaps some cases where maintaining her standard of living might make sense, but it should not happen by default. (An obvious instance is when the man insists that the woman quit work to stay home and take care of the children. There are of course many other legitimate reasons that the couple might agree upon in a prenuptial contract.) In those cases where maintaining her standard of living after a divorce is a reasonable thing to do, this maintenance can be written into a prenuptial agreement. That is, I have no problem with a woman stating in a prenuptial contract that the man would be responsible for maintaining her standard of living after divorce. If this seems reasonable and agreeable to both people, fine; but it should not happen by default.
11. Note that in a divorce the standard law allows, even encourages, ex post facto justifications for plunder. If you are just living together and she helps you remodel your house (which is your sole property and with money from your sole property) so it is more to her liking, without explicitly asking for any payment, then this is a favor that you are doing her, even if you don't really desire the remodeling. In a divorce, however, family law can, ex post facto, give her a stake in your house as a price for her help, for the remodeling you didn't care about, but did for her anyway. You are then put in the position of paying an exorbitant price for something that you did to be nice. Fits nicely in the category of "no good deed goes unpunished."
12. Marriage is often a commitment for men to accept being plundered. Women wonder why men are afraid to commit? It is also the case that women want commitment from men, but file more divorces. They say that it is a woman's prerogative to change her mind ...
13. It is not uncommon when women learn that I had a wife sign a prenuptial contract for them to express surprise that I "forced" her to sign a prenuptial contract. Even female
friends have used this terminology. Of course, logically one can no more "force" anybody to sign a prenuptial contract than one can "force" a person to get married without a prenuptial contract. The claim is that this is not a "loving" thing to do or you are planning to breakup before you ever get married. It is, apparently, far more "loving" for her to put you at huge financial risk (with her the beneficiary of that risk!) as a condition of marriage or demonstration of your love. Even after I pointed this out, some women still argued that the woman should be "given the benefit of the doubt." It did little good to point out that the "benefit of the doubt" should be given when one cannot remove the doubt, not in place of removing the doubt.
14. One of the problems is that there is no penalty for trying to use the law to steal in a divorce. Nobody knows what kinds of specious arguments some court might accept. Her lawyer can thus threaten to steal huge amounts of money in return for not accepting an offer to settle for a fraction of the money. There may only be a 10% chance that a court will accept a specious argument to rob a person of a million dollars, but her lawyer might as well try because there is no penalty commensurate with the amount of money he is trying to steal for his client. My guess is that if they had to pay even 30 percent of what they tried to steal, very few lawyers would risk it. As it is, in a form of economic terrorism, R winds up "settling" for a small fraction simply because all the risk is R's and there is no risk to P, who is trying to steal the money. A prenuptial contract cannot perfectly protect against this, but it changes the odds considerably, thus lowering the risk.
15. Trust is earned, not given. One has to give the benefit of the doubt in many circumstances. On the one hand, if a person willingly removes as much doubt as possible and makes things as honest, direct, and clear as possible, there can be little doubt about the person's motives. On the other hand, when a person can remove the doubt but either refuses or resists doing so, then the motives are not so clear. For some of my buddies, it didn't go so well. The fiancees accused the men of all kinds of things.
A. If you truly loved me, you wouldn't "force" me to sign a prenup.
B. This is terribly unromantic to be planning for divorce when we are in love.
C. You don't trust me. You are not even giving me the benefit of the doubt.
A, B, and C (as well as others) have reasonably obvious answers after one gives them a little thought. Possible responses to these accusations are:
AA. First, if you truly loved me, why do we need a marriage contract at all? Given that you insist on a legally binding marriage contract, the contract terms should be both clear and fair to both of us. The standard marriage contract is a "one size ts all" contract that does not fit our situation very well and is neither clearly specified nor fair. Without a mutually satisfactory contract, we are totally at the mercy of what some court, somewhere, sometime in the future, thinks is fair. Shouldn't we decide on what we agree is fair? What possible reason is there for letting someone else make this decision? Second, I am no more trying to "force" you to sign a mutually satisfactory contract, than you are trying to "force" me to sign a standard contract, that happens to be ill-defined and outrageously unfavorable to me.
BB. It is romantic for two people to be in love. The government is not involved in love. Getting married involves the government and cannot be romantic. Getting married is a legal contract that has unromantic divorce implications. I am not responsible for the law.
CC. The benefit of the doubt is given when the doubt cannot be removed. What is the motivation for not removing doubt when possible? Not removing the doubt puts me at unnecessary financial risk, with you as the beneficiary of that risk.
Drawing on my friends' experiences, at best, a "trust me, I wouldn't do that" is an expression of current sentiment. My guess is that this sentiment changes at least 1/3 of the time. Hell hath no fury ...
In addition to accusing my buddies of all kinds of nefarious things, many women go into irrational crying and/or screaming fits rather than actually try to understand and communicate rationally. (So much for "communication" being so important to them.)
16. One thing that would almost be humorous in family law if it were not both devastating and outrageous, is who can make a claim that they "did not have proper legal counsel" before signing a contract. If person P has no assets and person R has substantial assets, then P has no assets to protect whereas R has substantial assets to protect. Suppose R signs a standard marriage contract that is essentially unspecified and so unknown as to mean different things at different times and places. When P makes a claim on R's assets, the law doesn't give R any consideration that R was given no legal advice before signing a marriage contract whose details were not even written down. If on the other hand, P signs a contract that specifies exactly , and in writing, the terms of the contract, P can claim that P didn't understand what P signed. Unless P had legal advice before signing the contract, the contract may not stand. (People don't typically get legal advice before signing real estate contracts etc, but it is unlikely that a court would overturn a real estate contract because somebody didn't have legal counsel. Marriage is perhaps uniquely nefarious in this regard.)
So the law, in its infinite wisdom, provides P with a way to attack R's assets because P was not responsible enough to either understand the contract or get help understanding the contract. Instead, the law makes it R's responsibility to ensure that P gets legal counsel. Logically, P doesn't need legal advice to protect assets that P doesn't have. What the law seems to be protecting is P's right to plunder R, unless P has legal advice to understand that the contract R seeks is designed to prohibit such plunder. Part of this legal plunder issue becomes clearer when one understands that R has to disclose the assets that R is protecting from plunder. Now, I see no logical reason that P has to know the
value of R's premarital assets that R wishes to protect from plunder. If there is agreement that R's premarital assets (and anything derived from those assets, such as dividends, interest, and capital gains) will stay R's, what need is there to know the
value of these assets?
17. Even with a prenuptial contract, the legal system still favors the would be plunderer over the would be plunderee in a number of ways. For example, R and P get married in state 1 with a prenuptial contract and P gets legal counsel. In state 1 it may be enough that R's assets remain in R's name. All is good. Some time later, R and P move to state 2. Unbeknownst to R, state 2 requires R to produce every single monthly record associated with his separate assets or state 2 can conclude, without any evidence, that separate property has been "co-mingled" with joint assets. Therefore, the separate property assets are no longer separate property; the assets are now joint property. That is, the law in state 2 essentially assumes that the assets were co-mingled unless R can prove that there was no co-mingling by providing every single financial record associated with the assets. It is a presumption that R is guilty of trying to change joint assets into R's separate assets. Note that all the records from the date of marriage are required, not just records from the date R and P moved into state 2. So, even if R actually went and found out what the laws were in every state that R and P move into, R is still screwed because R needs to comply with the record-keeping laws of these states
before R ever even contemplated moving to these states. The fact that R did not know that R had to keep all the records because R was not familiar with the laws in all 50 states? Suppose he kept records according to the usual 7 (sometimes 4?) year record keeping requirements. Well, that is just tough luck. Lets say that R somehow is aware that R must keep meticulous records to protect his separate assets. R dare not lose or misplace any records throughout the entire marriage, no matter how many times residences are changed. What if the house catches on fire and the records are destroyed? An accountant told me her experience and belief about R's separate property claims. First, it was extremely rare in marriages lasting some years that R kept adequate records. Second, she believed that huge amounts of money were transferred from the R's to the P's solely because of poor record keeping. Third, there were almost never any attempts by the R's to defraud the P's.
Suppose that P is also aware that R is presumed guilty of co-mingling joint and separate property assets, unless R can prove otherwise, and P happens to throw out records that R is keeping? My guess is that even in the extremely unlikely case that R could somehow establish that P intentionally threw out records, P would probably still be able to plunder R on the basis that R didn't have all the records to show that he hadn't co-mingled his separate property. The law protects the plunderer, not the plunderee.
One thing that should help is that records can now be kept electronically. This obviates moving boxes or file cabinets worth of paper records. Furthermore, the small volume and large capacity of an electronic storage device like a USB drive means that it is easy to keep multiple copies of the records in multiple places. Any records that still are on paper should be converted to electronic form by scanning into something like a pdf file.
18. Suppose that R does somehow produce every single record (from the date of marriage onward) establishing that R's separate property has not been "co-mingled?" The attack on R's money may still continue based on other specious arguments that
some court might accept. For instance, suppose the prenuptial contract from state 1 specifies that R's premarital assets and anything derived from those assets will always remain R's. The divorce occurs in state 2 and P's lawyer claims that P is due a share of the capital gains in a stock account because R used his time to manage those assets, and in state 2, R's time is a joint asset. Thus R has "co-mingled" his assets. The judge in state 2 might decide that the contract written in state 1 simply specifies that everything belongs to R with no special exception for whether R "used his time" to manage the account. Or, the judge in state 2 might note that the contract in state 1 is written according to the laws in state 1 that deal with "marital assets" and state 2 deals with "community property." The judge in state 2 might then decide that the court did not know what "marital assets" were as defined by state 1, and was not going to bother to find out. Instead, the judge in state 2 could decide to substitute for the term "marital assets" as defined by state 1 with "community property" as defined by state 2, because the court knows how to handle "community property." The court in state 2 can thus effectively nullify the conditions of the prenuptial contract.
5 Beware of Family Law's Dishonest Tactics About Prenuptial Contract Advice
A standard trick, maybe almost a requirement rather than an optional trick, during the required prenuptial advice that P must get, is to misrepresent the prenuptial contract. Rather than an honest discussion of the impact of going from the present unmarried situation to the married situation under the prenuptial contract, her lawyer essentially “moves the goal posts.” Her lawyer focuses on the impact of going from some hypothetical, non-existent, and rejected “married without a prenuptial contract” situation to a married situation under the prenuptial contract. The real situation is thus supplanted by a totally fictitious and rejected reference situation. Outside of family law, such illogical nonsense is known as a "straw man" argument. (Unfortunately, this lawyer legerdemain is probably not atypical of the specious reasoning used in family law courts.)
After the talk with their lawyers, some women apparently feel that some things have been unfairly taken from them, despite the obvious fact that this is ridiculous. These things cannot be taken from the women because the women never had those things in the first place. In the usual situation (outside of family law) one acknowledges that, because A wants some things from B, does not mean that B has taken the the things from A if B decides not to give the things to A.
Of course, when a man marries in the absence of a prenuptial contract these things can be taken from him because he has them. But, family law does not give a tinker's damn if the man signed a standard marriage contract without legal advice. The law is dishonest, protecting the plunderer and not the plunderee.
6 Proper Placement of the Onus
Almost always, when person A wants to derive huge financial benefits at person B's expense, the onus is on person A to justify why he should be entitled to those benefits. Marriage seems to invert this. The onus seems to be on person B to justify why A shouldn't derive huge financial benefits at person B's expense. Also, in normal circumstances, when A breaks a contract A is required to compensate B. In marriage however, if A breaks the contract A can often benefit by forcing B to pay A. Does this lunacy of financially damaging the party who abides by the contract to enrich the party who broke the contract apply in any other situation?
Unless laws change, say in the direction of having 12 standard contracts to choose from, you probably will find it useful to have a prenuptial agreement to protect your assets. Note that many women would not take all that family law might "entitle" them to take. Finding such a woman is the best protection you can have. One important value of an explicit prenuptial contract is that it tends to "keep honest people honest." Although the prenuptial contract can always be challenged, it is a written record of specifically what was agreed upon. Many women have enough honesty and integrity to honor this agreement, even as their lawyer suggests every conceivable specious reason that a court might accept for breaking the agreement. Absent a written agreement, the best you can hope for is that the woman's idea of "fair" at divorce time is not simply synonymous with "whatever I can use the law to steal." Sometimes it is synonymous and sometimes it isn't.
Without proper planning, the onus associated with a prenuptial agreement will fall on the man asking for such an agreement. Here are some ideas for changing that.
1. When she first brings up commitment or marriage, ask her what would be different than just living together? Why not just live together as perhaps you have been? Point out that marriage laws can be mercenary and ask what she wants in case of divorce. At this point, many women will be offended and say that they don't want anything. If she attacks you for this question, you can tell her that you are communicating honestly and you will be glad to talk about marriage when she can accept honest communication. Until then, you will refuse to talk about marriage. The onus is then on her to begin an honest communication on marriage and divorce.
2. If she brings up marriage a second time and is willing to begin an honest communication, suggest that you talk about these issues in the presence of a marriage counselor. What does she think is fair, or simply want, if a divorce comes? The marriage counselor should help ensure that she stays focused on answering the question rather than attacking the questioner. If she insists on marrying the "normal" way, point out that anybody who requires that you put yourself at huge and unnecessary financial risk, with her as the beneficiary of that risk, as a condition of marriage or as demonstration of "love" should explain why she requires this. If she still refuses to discuss what she wants in a divorce, you can tell her that you are communicating honestly and you will be glad to talk about marriage when she can accept honest communication. Again, the onus is on her to begin an honest communication on marriage and divorce. Record the session with the marriage counselor so that you both have a record of the discussion. Don't hold her to what she said in the session, if she wants to change her mind after she has thought about it a bit more, let her.
3. Once she has told you what she wants in a divorce and that seems to have finished changing, you need to decide if that is agreeable to you. If what she wants is agreeable to both, write a rough draft of the agreement that includes all the details that you have discussed. Go back to the marriage counselor and discuss the draft agreement in another session. Record this session also. If there are no unresolved issues, it is time to see a lawyer, per the next item. If there are unresolved issues, take no action until the issues are resolved. Better to have "irreconcilable differences" now than after marriage.
4. If there is agreement on the rough draft, get a lawyer that represents
her to draw up a prenuptial contract based on the agreement. Object if the contract is materially different than the rough draft. Make sure that all your protections are specified in the contract even if the lawyer tries to write a different agreement because the original agreement might not stand up in court. Tell the lawyer that you both have agreed to include various items in the original agreement because they are important and the court probably will accept the items. Tell the lawyer that he has done his job to advise you that some item might not stand, but to go ahead and put it in unless the lawyer is nearly certain that the item won't stand. Explain what the purpose of the item is. Perhaps the lawyer can accomplish the purpose with different language that the court likes better.
5. Again, note that most women are not inherently mercenary, but the law encourages mercenary behavior by rewarding those women who are, or can be convinced to become, mercenary. Given such legal encouragement, it is laudable that most women are not mercenary.
6. Note that if her lawyer draws up the prenuptial agreement, then it probably will be harder to argue that she foisted an "unfair" agreement on herself.
7 "Unconscionable" Contract Creep
One of the problems with having a family court enforce a contract that both people agreed was fair at the time of the marriage is the well-meaning, but often malicious in practice, legal notion of an "unconscionable" contract. The idea is that some contracts are so unfair that a court need not enforce them. For instance, if a prenuptial contract required a woman to cut off her arm if a divorce occurred, almost everybody (99%) would consider this requirement "unconscionable" and her lawyer could almost certainly successfully get this requirement thrown out. There are three aspects of the law that, working together, change the meaning of "unconscionable" from something that 99% of the people would agree was totally outside the bounds that a civilized court should allow to simply "substantially unfair" in the mind of a single judge. The three aspects are:
1. The law works on precedents, so what some earlier court decided was "unconscionable", even if only 90% of the people would agree that it was unconscionable rather than 99%, now tends to become a de facto definition of "unconscionable." With the bar lowered, the next case need only come close to the 90% standard rather than the 99% standard. Maybe after a few cases, a 75% agreement standard will suffice as "unconscionable." This can continue until "unconscionable" comes to mean simply "substantially unfair" because there is essentially no effective restraining force commensurate with the forces tending to degrade the standard.
2. If there were a penalty for trying to stretch the notion of "unconscionable," then there might be some restraining force that kept "unconscionable" as meaning a truly unconscionable contract that almost everybody would agree was unconscionable. From an internet lawyer:
"How do the courts determine fairness? To start with, they would likely question prenups that appear lopsided, says Arlene Dubin, a divorce lawyer in New York and author of the book "Prenups for Lovers." If one spouse earns or owns a lot less than the other, and in the prenup waives the lesser-earner's rights to spousal support, for example, the document may be considered unfair."
Note that it is unlikely that there would be almost uniform agreement (say 99%) that it was fairer to throw out the above contract than to enforce the contract. So, unconscionable has crept to mean simply "lopsided."
3. The supposition for "unconscionable" is that almost everyone would agree, but the law does not provide a means of testing what fraction of the people agree that a contract is "unconscionable." So, "unconscionable" is an ill-defined term with all the forces pushing this to mean simply "
lopsided" and no effective restraining forces. It should be little surprise that "unconscionable" in the legal sense does not really mean unconscionable in the dictionary sense.
8 Asymmetries in Breaking Agreements, Vows and Commitments
The primary reasons that many men get married are children and/or sex. Many women want to "marry well" both for security and a better life. Note that a woman's promises of sex and/or children are not enforceable promises. But, a woman who "married well" can force a man to provide for her for a very long time in many cases. If they agreed on no children and she later changes her mind and goes off birth control without telling him, he will still be responsible for supporting her and the children. If they agreed on children and she later changes her mind, he might still responsible for supporting her even though she didn't keep up her end of the agreement. As a practical matter, marriage legally does not require a woman to do anything for her husband. There are only a limited number of things that you can do about this asymmetry, other than be aware of it. If are sure you never want children, a vasectomy is an option. Other than that, it is just one of those unfortunate instances in which you have responsibility but no authority. Women often talk about "commitment" as if it were mutual and symmetric. Provided the woman "marries well," has she actually committed to anything? There is nothing she is legally committed to do in the marriage and no legal commitments to her ex if she divorces him. In fact, provided she "marries well", if she breaks her marriage vows of "til death due us part" the law usually requires her ex to pay her.
9 A Woman's Biological Clock
When women get to around 30, many women start worrying about having children and their declining fertility. Many women know that they want children, but other things often have higher priority until women get to around 30. I am not an expert on these things and only want to point out a few possible implications.
Many women tend to get less choosy about who to marry and father their children as their fertility declines. You can read all the stuff on the internet about women "settling." Some even go the "turkey baster" route with artificial insemination. But, for most women, there are significant incentives for finding "a good enough man" to marry as opposed to the turkey baster approach. With luck, maybe the marriage will work out even though she is "settling." If the marriage does not work well for her, she is still far better off than with the turkey baster approach because she can simply bail out of the marriage and the man will be tapped for child support and probably even alimony. There is very little downside in marriage for her as long as she picks a man who has a decent job. If he hasn't kept good records she can benefit from poor recording keeping on his separate property. Even if f he has kept perfect records on his premarital assets, the return on those assets are available for child support. (A woman can spend your child support on herself and/or other children that you did not father, because there is no enforceable requirement that your child support be used exclusively for your children.) The older the woman gets, the more likely it is that she is "settling" for you and hoping for the best. The younger the woman is, the more likely it becomes that she really wants
you and is not just "settling" for you.
