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

[HomeschoolDad]

HomeschoolDad:

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.

It is both a potential real-world situation, and a theoretical construct. For it to apply to me, first of all, I would have to obtain a declaration of nullity (which may never happen), then meet someone I would wish to marry, then ascertain, as you point out, that there is a need for things to be set up this way.

Not to make it too personal, but for various reasons, my son is going to need a “leg up” in life (or let’s just say it will be highly desirable, and far preferable to have it than not), he is my only child (we have at least one miscarried child in eternity, possibly more than that), and in our family, the generations take care of one another, those with abundance help out those in need. I find the concept of “spending my child’s inheritance” to be so horrifying that I can hardly even entertain the thought of other people doing so — yet in American culture, where the concept of “patrimony” is largely unknown, there is the notion of “every generation taking care of itself”, being autonomous units that sink or swim on their own. Others may do as they see fit, but in our family, we take care of each other. Always have, always will.

 

[otjm]

I do not know your son’s situation nor do I need to know it. As the whole issue is one of pure speculation, I pretty much stand by my answer; should it ever be a possible scenario with a decree of nullity and meeting someone, you should speak to an attorney who specializes in wills and trusts, and you should do so before you are on the brink of any change. You may find that trusts are far less an issue than you think - but if there ever is the possibility of marrying - or even if there is not, you may want to explore setting up a trust as that may be the best means of dealing with future possibilities of your son obtaining the home. Protection may be needed even if there is no potential spouse issue. That is your call, and paying for a half hour or an hour to discuss the ins and outs and possible reasons for a trust would likely be worth all you spend, and more.

 

[HomeschoolDad]

I hope sharing my son’s situation wasn’t disagreeable. As I said, in our family, the generations take care of each other. That’s just what we do. And these property considerations are just part of that.

I ask such a question both for my own benefit — though it probably won’t really matter, not to overshare, but even if I were free to marry, it would take one heck of an amazing woman to induce me to part with my basically happy, contented sexagenarian bachelorhood and the freedom that comes with it — and for the benefit of others who might facilely conclude “oh, no, pre-nuptial agreements are a bad thing, they mean that you don’t intend your marriage to be permanent and indissoluble, they mean you don’t trust your affianced partner, that’s just wrong, no Catholic would ever get one of those, bad, bad, bad”. One’s sensus catholicus would seem to militate in favor of “that would invalidate a marriage ipso facto” or “that would have to be against canon law”. But, as it turns out, neither is true.

It’s more complicated than that, especially when the intending spouse brings considerable assets and children into a marriage. Those children have rights too, if not legal, then moral. Some people might be content to go before the Judgment Seat saying “I stiffed my kids because the law didn’t require me to take care of them as adults”, but I’ll pass on that, thank you. Even if it weren’t a question of sin, I’d still find it disagreeable. Different families have different worldviews and deal with situations differently.

And as you well point out, questions of marital permanence and indissolubility aside, one’s best bet is to consult an attorney who specializes in such things. I have never considered a single dollar I have ever paid to a good attorney to be wasted money. Quite the contrary.

 

[Lara]

If you remarry, make sure it is to someone who would give the correct amount to your son without any legal instructions. I, for instance, can be trusted with hundreds of thousands of dollars. I wouldn’t take a paper clip that wasn’t mine. I have only taken a raspberry from another person’s raspberry bush once or twice but that seems different.

Also, wouldn’t your second wife then become part of the family you promise to take care of?

I think you should get the declaration of nullity before even thinking about all this; it seems a bit theoretical.

 

[Lifeisbeautiful3]

If you remarry, make sure it is to someone who would give the correct amount to your son without any legal instructions. I, for instance, can be trusted with hundreds of thousands of dollars.

I would’ve thought that about my spouse, as well. Until she developed psychosis and wire transferred many thousands of dollars in a matter of days to an orphanage by way of Deutsche Bank and Ecobank Nigeria.

Sometimes, divorce is the only way to protect assets. A prenup customizes how to allocate those assets equitably in a way that both parties agree.

 

[HomeschoolDad]

If you remarry, make sure it is to someone who would give the correct amount to your son without any legal instructions. I, for instance, can be trusted with hundreds of thousands of dollars. I wouldn’t take a paper clip that wasn’t mine. I have only taken a raspberry from another person’s raspberry bush once or twice but that seems different.

Also, wouldn’t your second wife then become part of the family you promise to take care of?

I think you should get the declaration of nullity before even thinking about all this; it seems a bit theoretical.

I am trying to nurture a couple of blackberry bushes in my backyard, so far with unfruitful (pun intended) results, so if I find there’s been a prowler out there, I’ll know who it was

You make an excellent case for ensuring that you know, and know, and know, anybody you’re getting ready to marry. I am appalled that civil authorities make it so easy for couples to marry — in some famous elopement havens such as Gatlinburg and the legendary Gretna Green in Scotland, you need do little more than just show up at the minister’s or civil officer’s doorstep. As I always say, it’s a whole lot harder to get out of a marriage, than it is to get into one, and that doesn’t even begin to touch the Catholic concept of marital permanence and indissolubility. In my perfect world, I’d require such things as background checks, financial audits (assuming the affianced couple has anything to audit, many do not), written contracts on crucial matters such as expectations about having children and so on, and, yes, psychological evaluations. (But then again, in my perfect world, a lot of things would be different than they are now, and “my perfect world” wouldn’t be the same as “the other guy’s perfect world”.) I do believe there is such a thing as “better quality control on the front end” — pre-Cana is good, but it’s not enough, certainly not enough in our time and culture. The divorce and annulment statistics bear this out abundantly.

 

[HomeschoolDad]

You are correct to note that the second wife does indeed “become part of the family”, but where children are involved, it’s just not the same. Children do not ask to be brought into the world, and I know in American culture, there is a strong concept of “pulling yourself up by your own bootstraps” with every generation being its own autonomous “thing”, but especially in the difficult economy and culture we live in, children more often than not will benefit mightily from “having a leg up”. Chinese culture gets this — American culture doesn’t. Unless he just squanders everything (which I have taken legal steps to mitigate), my son will never have a mortgage to pay. How huge is that? On average, you pay three times as much money back on a mortgage, as you borrow in the first place. At one time we didn’t believe in usury. If paying back a loan at an effective 200% rate of interest isn’t usury, then I don’t know what is. (I was once in this business, and that was always a nagging back-of-the-mind moral issue for me. I was glad to get out of it!) What an albatross to have around your neck for 30 years!

Whether I ever have a declaration of nullity or not, to my mind doesn’t affect the usefulness of thinking about such things as a theoretical possibility. I have no declaration of nullity, and in the eyes of the Church, thus in the Eyes of God, my wife and I are just as “married” as Mary and Joseph were. That is the way it should be, in the absence of the Church’s power of binding and loosing to declare it null and void. Nonetheless, the temporal aspect of the union is dead. She has chosen to “remarry”, and she and her consort have everyone convinced they are in a valid Catholic marriage (yes, they receive communion), but at the end of the day, she knows, I know, and she knows I know. And besides, my wife could pass away, I’d be free to marry, and the same issues of estate and inheritance would exist. This discussion doesn’t necessarily hinge on a declaration of nullity.

 

[RolandThompsonGunner]

A lot of the concerns you mention seem like they should be addressed in a will, not a pre-nup.

I’ve seen widows and widowers marry and then promptly write wills disinheriting one another, precisely because they agreed that their respective estates should go to the children of their first marriage.

 

[HomeschoolDad]

A lot of the concerns you mention seem like they should be addressed in a will, not a pre-nup.

I’ve seen widows and widowers marry and then promptly write wills disinheriting one another, precisely because they agreed that their respective estates should go to the children of their first marriage.

You can’t do that in my state. My state forces a certain percentage of one’s estate to go to one’s spouse. I don’t know if pre-nups trump that or not. If it ever comes to that, that’s where money well spent on a good attorney comes in.

 

[dochawk]

should it ever be a possible scenario with a decree of nullity and meeting someone, you should speak to an attorney who specializes in wills and trusts,

The problem is that a will or trust canot achieve it all alone.

It needs the prenup to deviate beyond a certain point.

For example, H dies first, W dies before resolved, and W’s kids assert her statutory share.

If there is not a prenup, the trust will fail in many or most states.

The prenup is absolutely necessary for stepping out of the statutory rules and limitatoins.

Or consider the 401k rules: the beneficiary cannot be anyone other than the spouse unless the spouse at the time of death has given written consent.

So W1 signs for the trust to be beneficiary, then dies. If H remarries, and W2 does not sign waiver, she is the beneficiary (and again, if she would die, it’s off to her kids instead of H’s).

Rare? I haven’t had my paranoia about such things save a client since . . . this morning. (seriously)

 

[otjm]

The problem is that a will or trust canot achieve it all alone .

It needs the prenup to deviate beyond a certain point.

I am aware of that; but the OP needs to start at a starting point, and comments he has made indicate a lack of knowledge of trusts, as he speaks about loss of control.

He may want to consider a trust in any event; as he noted, nothing would mover forward re: marriage unless and until he obtains a decree of nullity. While the question was posed of a second marriage and the transfer to his son, whatever the reason is that he would want to transfer the house to the son is the driving force in the question, and may be an issue even if he never marries. Trusts are not done just because of marriages (with pre nuptial agreements).

Better you than me - I just practiced in divorce court. Trusts were out of my wheelhouse.

 

[LilyM]

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

I am not sure of this logic.

Buying fire insurance for my house does not mean I am thinking of burning the place down. Nor does buying life insurance for my husband make me one bit more iikely to kill him, or him to kill himself.

Why does planning for the possibility of his wanting a divorce (which he can obtain by himself without my consent) condition consent?

 

[Diaconia]

Conditioning consent invalidates matrimony, it’s a canonical phrase used in Tribunals.

 

[HomeschoolDad]

otjm:

should it ever be a possible scenario with a decree of nullity and meeting someone, you should speak to an attorney who specializes in wills and trusts,

The problem is that a will or trust canot achieve it all alone .

It needs the prenup to deviate beyond a certain point.

For example, H dies first, W dies before resolved, and W’s kids assert her statutory share.

If there is not a prenup, the trust will fail in many or most states.

The prenup is absolutely necessary for stepping out of the statutory rules and limitatoins.

Or consider the 401k rules: the beneficiary cannot be anyone other than the spouse unless the spouse at the time of death has given written consent.

So W1 signs for the trust to be beneficiary, then dies. If H remarries, and W2 does not sign waiver, she is the beneficiary (and again, if she would die, it’s off to her kids instead of H’s).

Rare? I haven’t had my paranoia about such things save a client since . . . this morning. (seriously)

If you practiced in my state, I’d want you for my probate attorney. I had not thought of the scenario you describe.

dochawk:

The problem is that a will or trust canot achieve it all alone .

It needs the prenup to deviate beyond a certain point.

I am aware of that; but the OP needs to start at a starting point, and comments he has made indicate a lack of knowledge of trusts, as he speaks about loss of control.

I do have a relative “lack of knowledge”, though I am not totally ignorant of them. I would be more interested in a revocable trust, however, if a trust is revocable, how do tax and probate entities view this? I say “revocable” because, well, things can change.

Conditioning consent invalidates matrimony, it’s a canonical phrase used in Tribunals.

But does establishing a legal framework, to be more specific, the kind of framework described here, constitute “conditioning consent”? This only addresses the temporal situation, not the spiritual or sacramental one. I make no assertion here that a pre-nup in any way vitiates the intent of permanence and sacramental indissolubility.

 

[Lifeisbeautiful3]

The more I read about this topic, the more I realize how absolutely paramount it is for folks to have a prenup, particularly if there is a disparity in assets coming into the marriage.

To say that a legal construct that specifies how things will occur in divorce invalidates a marriage is rubbish. This construct already exists by virtue of the laws in a state (e.g. even without a prenup, there is underlying legal language that dictates ‘what happens in the event of divorce’). A prenup merely customizes these preexisting governing rules.

 

[Diaconia]

But does establishing a legal framework, to be more specific, the kind of framework described here, constitute “conditioning consent”? This only addresses the temporal situation, not the spiritual or sacramental one. I make no assertion here that a pre-nup in any way vitiates the intent of permanence and sacramental indissolubility.

It depends upon the text of the prenuptial agreement itself. On the questionnaire we send to someone seeking an annulment one of the first questions is, “did you sign a prenuptial agreement?” And if so, examining the document often brings compelling evidence to the case.

As I mentioned before, I have seen a couple that DID NOT conditional matrimonial consent, but most of them do.

Deacon Christopher

 

[Bernoulli]

As I mentioned before, I have seen a couple that DID NOT conditional matrimonial consent, but most of them do.

So, what did the non-conditioning or conditioning pre-nups specify as their terms?

 

[Diaconia]

That’s a bit too specific to share here. We have now crossed the rubicon of theoretical musings into actual, real legal documents that exist.

For purposes of CAF - prenuptial agreements are almost always a bad idea; and if someone believes they have a specific case that warrants one they should speak to their lawyer, and, also their Tribunal.

Deacon Christopher

 

[otjm]

For purposes of CAF - prenuptial agreements are almost always a bad idea;

That seems to presume that a pre nuptial agreement is to protect in the case of divorce

My father died; my mother married a widow. They had a pre nuptial agreement not for the protection of a divorce, but for the protection on both sides of those who would inherit; they also wrote wills.

It also seems to presume that anyone signing one is presuming that they do not intend that the marriage be permanent; it may be the other party who does not so intend. As in, one party may fully intend "until death: and one does not.

 

[dochawk]

Better you than me - I just practiced in divorce court. Trusts were out of my wheelhouse.

I loathed divorce court.

We could’t simply announce, “Your honor, you would be nuts to let either of these monsters take care of the children!” . . .

My criminals were much nicer people . . .

Now it’s almost all bankruptcy, some business law, and the occasional simplple trust or guardianship coming in from the church or KofC.

If you practiced in my state, I’d want you for my probate attorney. I had not thought of the scenario you describe.

thanks. I am a professional paranoid . . .