I once heard a rabbi say the possibility of divorce is a positive force in a marriage because it’s an incentive to be well-mannered.
I agree. The urge to be courteous is reduced if your spouse has no escape. At least that’s what Anne Boleyne told me.
However, I would add an important qualifier: the possibility of divorce is a positive incentive for spouses who have something to lose. Not everyone has something to lose. The pain of divorce, and the incentive to protect the marriage, are not necessarily distributed evenly. I think that’s evident in a few statistics.
In the US, women initiate 70 to 80 percent of divorces (American Sociological Association 2015). There are various theories as to why, most of them conveniently aligned with the political beliefs of whoever is doing the theorizing.
Women also win 80% of child custody cases (Grall 2020) and almost all alimony awards (Sorge and Scurlock 2013). At the societal level, there’s a pretty strong correlation between the one who initiates divorce (the woman) and the one who profits by it (again, the woman).
I’m careful about reading too much into correlations. (Did you know the divorce rate in Maine correlates with per-capita consumption of margarine? Bastard margarine.) Just because women generally fare better in family court doesn’t mean they initiate divorce for fun and profit. A few sociopaths aside, divorce isn’t fun for anyone.
However, I think it’s fair to say women are not disincentivized in the same way as men. That turns the Rabbi’s incentive on its head.
I have met dozens of men who hesitate to marry for fear of “divorce rape,” but I have yet to meet a woman with that concern. I haven’t even heard rumors that she exists. I have certainly met women who were concerned about protecting their wealth, but not because they fear an institutional bias against their gender.
Prenuptial Agreements Recalibrate the Incentive to Be Lovable
People tend to think prenups are about money and child custody arrangements. That’s only the surface. At a deeper level, prenups increase the incentive to be continually worthy of our spouse’s love and admiration.
That might be what makes prenups such an uncomfortable topic. To sign a prenup is to acknowledge that the person we idealize today may be less-than-ideal tomorrow, and so might we.
Yet people don’t generally think about prenups in those terms. They think about financial safety, or lifestyle freedom, or whatever money represents to them.
Most men seem to think about it like this: prenups make sense because they minimize the influence of biased and unaccountable judges in the event of divorce. If a man’s fiancé refuses to sign a prenup, it looks to him as if she’s refusing to relinquish her legal advantage down the road. She’s refusing to put skin in the game and share the risk.
From the vantage point of most women, I think the prenup conversation looks a bit different. If her fiancé asks for a prenup, it looks to her as if he assumes the relationship will fail. She might think he is trying to grease the wheels for an easy exit by signing a prenup, just like he might think she is trying to maintain an easy exit by not signing.
They’re in the same boat. They’re both concerned about staying together. But they will never realize if they think they’re only talking about money and children.
The Prenup Conversation Is About Investment
The hard truth is that becoming unmarried — like becoming unhealthy, unwealthy, or unalive — is always a possibility. Conflicts develop. People change. Bad things happen.
Equal risk encourages equal investment. A prenuptial agreement is one simple way to share risk, along with the incentive to stay lovable when times are tough.
Astute readers might wonder if my wife and I signed a prenup. We did not. It didn’t occur to us. I have no regrets about that. After 23 years, I am certain I married a woman of impeccable character. We each give more than we take in the relationship, and we have successfully navigated difficulties together. Those two factors alone make the odds of divorce remote. On the distant chance that our marriage should somehow disintegrate, it would be highly uncharacteristic for either of us to try to destroy the other.
Those are precisely the things you don’t know before spending decades with a person. The prenup conversation is a chance for less experienced couples to manage some of that uncertainty.
It’s also an opportunity to practice having difficult conversations. If a couple can’t do that before the marriage, while stakes are low, it’s unlikely they will be able to do so after the marriage, when stakes are high. Idealistic, untested couples are notorious for assuming they will have the skills to navigate any problem. Family courts are filled with older, more jaded couples who overestimated their skillset.
No Prenup, No Wedding Plans
I’m not a lawyer. I’m barely law-abiding. I have no legal advice to give. But I will offer two non-legal thoughts of the type I would offer my own son or daughter.
First, I wouldn’t even discuss wedding plans until after the prenuptial agreement is signed and filed away, hopefully never to be seen again. Why? Because once the wedding train starts rolling, it becomes increasingly difficult to back out, or to negotiate the terms of the relationship.
No prenup, no wedding plans.
(A side-note for men: if you’re afraid to bring up the prenup because you fear she will react badly, imagine what the marriage will be like.)
Second, don’t be cheap. Follow the direction of a skilled family law attorney who understands your local landscape. Attorneys have told me both parties should have representation so neither side can claim they didn’t understand the terms of the agreement, or that they signed under duress.
I believe prenuptial agreements are best seen as a statement about shared risk, and the prenup conversation is a test of the relationship’s integrity. Ironically, couples who can discuss difficult topics with grace and empathy are probably the ones who need a prenup the least.
American Sociological Association. 2015. Women More Likely than Men to Initiate Divorces, but Not Non-Marital Breakups. Press Release. Retrieved from http://www.asanet.org/press-center/press-releases/women-more-likely-men-initiate-divorces-not-non-marital-breakups.
Grall, T. 2020. “Custodial Mothers and Fathers and Their Child Support: 2017,” Current Population Reports, P60-269. U.S. Census Bureau, Washington, DC.
Sorge, J., and J. Scurlock. 2013. Divorce Corp. Jackson, WY: DC Book LLC.