Are prenuptial agreements acceptable where one's children need protecting?

[HomeschoolDad]

I have in mind where a prospective spouse would be bringing a considerable estate to the marriage, and would wish to be able to preserve this estate for their existing children to inherit. This is to be distinguished from desiring a pre-nup solely for one’s own advantage.

I am fully aware that pre-nups are, on their face, extremely offensive to many prospective Catholic spouses — “how dare you suggest that we might divorce one day?”.

 

[RhodesianSon]

In today’s world I think prenups are smart regardless of ones religious beliefs. At any time one party can unilaterally terminate the relationship and no fault divorces are the norm.

 

[Anesti33]

A Catholic look at pre-nuptial agreements

Catholic discussion of “pre-nuptial agreements” (pre-nups) might be assisted by the following observations. First, although the Church’s position in regard to civil divorce is often presented as on…

canonlawblog.wordpress.com

Dr. Ed Peters:

One can, of course, easily imagine terms in pre-nuptial agreements that violate Church teaching on marriage. For all I know, these represent the great majority of pre-nups now in force. Such documents cannot in good conscience be signed. But one can also, I suggest, imagine terms in a pre-nup that are wholly consistent with, nay even supportive of, Church teaching on marriage. Indeed, one could construct a pre-nup that is deliberately counter-cultural and, even if parts of it came into play only in the face of divorce (which an unwilling party cannot prevent anyway), would discourage civil divorce undertaken in disregard of Christ’s teaching on marriage.

 

[JerryZ]

Any pre-nup agreement that spells out divorce clauses is a de-facto ground for an annulment, which in turns means in simple English that the matrimony was never valid.
Once one brings the possibility of divorce, how can any one give his/her word to GOD that this union is until death us part?

Peace!

 

[HomeschoolDad]

Any pre-nup agreement that spells out divorce clauses is a de-facto ground for an annulment, which in turns means in simple English that the matrimony was never valid.

I’m glad you brought this out — “that spells out divorce clauses” — because, come to think of it, a pre-nup that preserves a portion of one’s estate for one’s children by a previous marriage, does not necessarily indicate that there is an intention of protecting against divorce. It would be more in the nature of “Home X” or “Bank Account X” being bequeathed whole and entire to one’s children, and being placed out of reach of the new spouse. Some states (including my own) mandate that a certain percentage of one’s estate be left to one’s spouse in a will “no matter what”, and I am thinking that such a pre-nup clause might take precedence over the statutory minimum percentage the surviving spouse is entitled to. Of course, depending on the state, there might need to be boilerplate legalese in the pre-nup to the effect of “in case of death or divorce” — I honestly don’t know, I am not a lawyer.

Actually, in a sense, the state’s laws on divorce already serve as a kind of pre-nup, i.e., everything gets split 50/50, so all couples “have a pre-nup whether they want one or not”. As the saying goes (and my attorney reminded me of this in my own tragic divorce), you may agree upon disposition of assets with surgical precision, but the judge will use a meat cleaver. (In our case, gaining primary custody of my son was the only thing that mattered to me — as far as I was concerned, everything else could go hang. Thankfully my attorney had more sense than I did, took care of my financial interests, and I did get the custody I wanted.)

 

[JerryZ]

Ah but then that is not a prenup but a will isn’t it. What happens in case of the woman death?
My point remains when one assents to a prenup that as far a the Church goes invalidates the marriage ipso-facto. Drug abuse, alcoholism, violence are typically harder to prove to the Ecclesiastic tribunal, but that prenup is a self incriminatory proof so no more is needed to annul the marriage.
And by the way I am so sorry that you had to go trough a divorce.

Peace!

 

[HomeschoolDad]

Ah but then that is not a prenup but a will isn’t it.

Not quite. Let’s say that my state mandates that 30 percent of my estate goes to my wife “no matter what”. Then let’s say that 75 percent of the estate I brought into the marriage represents assets (home, investments, etc.) that I want to have go to my son when I die. If I get married, if nothing is done to trump this, then my son loses the difference between the 75 percent he would get if I weren’t married, and the 70 percent that he will end up with, after the 30 percent that my second wife gets. We are only talking 5 percent, but it’s still something, and something to which I want him entitled. Five percent of a million dollars (and I am not a millionaire, I’m just using that to keep the math simple) is $50,000. I wouldn’t want to see my son lose that kind of money. Again, no divorce, just death.

I would ultimately submit to the judgment of the Church, which as far as I know, has no canons or even teachings specifically against pre-nups, and a canonist who also understands American divorce laws could always come back and say “every marriage has a pre-nup, it consists of your state’s statutory divorce laws, writing your own agreement is just refining and altering what already exists”. A pre-nup such as I described above, not intended specifically to address divorce — though, as I said, legal boilerplate, making reference to divorce inter alia, might be required by law — seems as though it would be unproblematical.

 

[dochawk]

Ah but then that is not a prenup but a will isn’t it.

No.

And I’m speaking as a lawyer

I’ve seem second marriages with grown children of each in which, even with rather modest assets anyway, both sets of kids were convinced the other was taking financial advantage.

The prenuptial agreement can, in most states, supersede state law on distribution at death.

Catholic or not, a prenup with plans for divorce is a near guarantee of divorce, and is a bad idea for young or other coupes.

But for later life marriages with adult children and property, they make a lot of sense as estate planning.

 

[Gorgias]

Any pre-nup agreement that spells out divorce clauses is a de-facto ground for an annulment

Actually, it should be caught by the deacon or priest preparing the couple for marriage, and at that point, should stop the process in its tracks, pre-ceremony.

It would be more in the nature of “Home X” or “Bank Account X” being bequeathed whole and entire to one’s children, and being placed out of reach of the new spouse.

I am not a canon lawyer, but it seems to me that this kind of language is acceptable. This isn’t “what to do upon our divorce” but rather “what to do upon my death”, and that doesn’t demonstrate an intention against permanence (which is problem with a “divorce pre-nup”).

 

[Bernoulli]

Once one brings the possibility of divorce, how can any one give his/her word to GOD that this union is until death us part?

The Church teaching allows a civil divorce in order to protect legitimate interests. So a civil divorce is always a valid possibility.

 

[Bernoulli]

Ah but then that is not a prenup but a will isn’t it.

If one wants to give a piece of property to someone after their death, they need both: a pre-nup to specify division between the estate and the widow, and a will to specify division between inheritors. A will is invalid if it purports to give an item that doesn’t even belong to the estate.

 

[tuffsmurf]

This is just false, there is nothing in canon law that states that a pre-nup invalidates a marriage.

 

[Diaconia]

Most of the time they are a bad idea; more often then not they condition matrimonial consent, which makes easy work for marriage Tribunals in the future when most end up in divorce.

I’ve seen a couple that address the complexities of rural life here; one spouse has family interest in a farm - and divorce that compels the farm to be sold and divided can become a nightmare.

I believe there may be other legal tools to prevent those complications, but that may just be wishful thinking.

Deacon Christoper

 

[Lifeisbeautiful3]

Actually, in a sense, the state’s laws on divorce already serve as a kind of pre-nup, i.e., everything gets split 50/50, so all couples “have a pre-nup whether they want one or not

When Catholics marry, they have to discern whether they are doing so with recognition that a Divorce is possible. Pre-nuptial agreements are uniquely interesting, as they can suggest that the couple is defining the dissolution of their marriage even before it starts! Pre-nups typically DO define the parameters surrounding the civil dissolution of a marriage.

That said, even in the absence of a customized pre-nuptial agreement, every married couple (at least in the US) is already subject to a pre-nup - the underlying laws of the state in which the couple resides. A pre-nup, then, merely customizes the terms following a divorce. In the absence of a pre-nup, however, a couple who marries is legally subject to the same potential for divorce according to laws already in place in the state.

It is, indeed, fair to say that everyone who’s married already has a pre-nup.

 

[Lifeisbeautiful3]

From a Catholic lens, a trust is a viable alternative that allows for prudential direction of assets for specific interests/persons.

 

[Rau]

I have in mind where a prospective spouse would be bringing a considerable estate to the marriage, and would wish to be able to preserve this estate for their existing children to inherit.

One would think that some of what an intending spouse possesses could be carved out and identified as for the child, regardless of the future situation of the marriage.

 

[HomeschoolDad]

From a Catholic lens, a trust is a viable alternative that allows for prudential direction of assets for specific interests/persons.

Yes, but any trust, at least as far as I am aware, forces the person executing (or whatever the word is) the trust, to surrender at least a little bit of their total control over the assets covered by the trust. Not everyone wants to do that. I would be one of those folks. I have actually considered putting many of my assets into a trust for my son, but anything can happen — you can have unforeseen expenses and/or life events, and you need your assets, but you can’t get to them, because they’re tied up.

This is just false, there is nothing in canon law that states that a pre-nup invalidates a marriage.

I tend to agree with you. Pre-nups have an “ick factor” from the Catholic standpoint of the permanence and indissolubility of marriage, but this said, there are far worse ideas in the world than pre-nups. They only address issues of civil dissolution, not sacramental integrity — they’re legal agreements, not theological affirmations. A couple who civilly divorces still remains married in the eyes of the Church, and thus in the Eyes of God (Matthew 16:19).

I know we all adhere to the permanence and indissolubility of a sacramental marriage, but just being real, there is such a thing as original sin. Our culture presupposes that every couple approaching the Church for marriage is in love up to their eyeballs, and views their own union as something so strong, so formidable, that a hydrogen bomb couldn’t blast it apart. But then things happen. One of the spouses can get fat and ugly. One of the spouses can become devastatingly attracted to the hot little number (of either gender) at work that they see every day, and gradually (or not) there starts this little voice within one, “this is the person you’d really like to have, not your spouse”. Or problems can come out of the woodwork, perhaps hidden all along (even to the person who has the problem) — alcoholism, a drug habit that starts out innocently enough, sexual deviancy of this sort or that, the list goes on. True, the spiritual bond remains, the marriage remains valid, but things can deteriorate to the point where the couple is forced to live apart, and to seek a permanent resolution of property and child custody (assuming they have children) issues. When it gets to that tragic point, it might be a good thing to have something in place, if for no other reason than to protect against what a judge might decide. As I said above, you can determine your issues with surgical precision, but a judge will simply use a meat cleaver.

 

[Lifeisbeautiful3]

With the use of no-fault divorce, a prenup is of paramount importance.

Even to the extent that you would hold true to your own vows, there is a contract with the other party that the state holds in a civil environment that the other party can unilaterally break.

 

[dochawk]

I believe there may be other legal tools to prevent those complications, but that may just be wishful thinking.

for something being passed down through generations such as a farm, it is possible to have each generation tie the next with a trust. However, courts increasingly go past such things over domestic support.

Another example is my former law partners, whose agreement before I joined required a prenup before marriage. This would make a lot of sense on behalf of a large professional practice with several partners, with a would-be partner having a choice between seeing and not joining.

But as we’ve both said, prenups are usually a bad idea that set up and lead to divorce.

I’d note that it is conceivable that a prenup could be drafted to make divorce more difficult, but most of the ways I can think of are destructive in their own right . . .

 

[otjm]

Yes, but any trust, at least as far as I am aware, forces the person executing (or whatever the word is) the trust, to surrender at least a little bit of their total control over the assets covered by the trust.

I am going to assume this is a real-world question as opposed to some theoretical construct.

You are going in two directions; 1) what the Church may think of a pre-nuptial and 2) how they actually work in law.

Whether or not your state has some automatic 30% rule or not, and whether you “give up control” are issues to be taken up with an attorney who regularly works in trusts and estates.

As an example, there may be a number of possible solutions concerning your son receiving the house, either free and clear, or subject to a minor mortgage; there can be other assets which can account for a balancing.

Rather than presume, I would suggest that if this is a real world question, you consult an attorney; and while you are at it, you might want to consider that your son may not now want the house, or may have extenuating circumstances which might indicate that he would not want it at a later date.