Cohabs and Prenups

[Teenwolf]

There was a thread a few days back that discussed cohabs and prenups, and it got me thinking...

What makes the agreement unconscionable or unfair?

I would venture to guess that most people enter them in order to keep their finances and assets seperate, so what makes them unconscionable or unfair?

If you enter an agreement from the get-go which clearly states no SS, no pension split, no sharing of seperate assets, then why would this later be set aside? For arguments sake, lets assume that ILA and witnessing and all other prudent actions have been taken.

[murphyslaw]

I would think that it could be set aside if the other party became a stay at home parent for long time ,then that would be said to factor in to their ability to rejoin the work force.Which is bs in most cases.5 or six years out does not a moron make.(not saying that there is any particular time line for moron making)To avoid this bullet I would personally suggest that you encourage stay at home partner to take online or part time classes to keep them up to date in their profession

If they don't have a profession -push for them to get one .Be nice and understanding and help them get that qualification!Do those dishes ,give them that time and if things go great, yippee you have a partner who will earn good money ,if things don't....they wont be going after you because you have helped keep them self sufficient.That's when you can prove that they can support themselves, but WONT .This is my opinion.

[hadenough]

Pre nups, imo seem to stand up a lot better in ie: Hollywood. I had a co hab years ago that got me nowhere. A friend of mine also had an agreement made legally with her ex, and it too (in the end) was of no advantage to her.

I think in theory, they are a great idea - but they don't seem to hold up all that well come "show time." Maybe it's b/c by then - there are too many other variables and circumstances that were unforeseen and not included at the time the agreement was drawn up, and things change. Loopholes "open" that make the terms previously "agreed" to, suddenly arguable/attackable.

[OrleansLawyer]

Whether a domestic contract is unconscionable depends upon a number of factors, including the power balance between the parties, the end result, the intention of the parties and whether either were represented by counsel.

If you enter an agreement from the get-go which clearly states no SS, no pension split, no sharing of seperate assets, then why would this later be set aside? For arguments sake, lets assume that ILA and witnessing and all other prudent actions have been taken.

Now, taking your example - what if one party worked while the other took care of all of the domestic responsibilities. After a twenty-five year marriage they separate - with all assets in the name of the working party, while the other has not a cent to their name. Regardless of the intentions of the parties when signing the agreement, such a result would be so inequitable as to offend public sensibilities.

Perhaps the one party signed the agreement against the advice of counsel, because they did not believe the relationship could fail or, if it did, they would always be taken care of? The courts protect the rights of parties to make disadvantageous bargains; however, given the intensely personal nature of family law, they may step in to prevent results that are unjust.

[Teenwolf]

Pre nups, imo seem to stand up a lot better in ie: Hollywood. I had a co hab years ago that got me nowhere. A friend of mine also had an agreement made legally with her ex, and it too (in the end) was of no advantage to her.

This is what I'm afraid of, and I believe it's unfair. If I enter a domestic contract with my intent clearly expressed in a written legal document, then I believe that should be honoured. Obviously, I have concerns about my assets and, to me, the agreement expresses those concerns and the grounds to which I'm willing to enter a relationship.

Whether a domestic contract is unconscionable depends upon a number of factors, including the power balance between the parties, the end result, the intention of the parties and whether either were represented by counsel.

That's another great term which I read in case law, but I still don't have a clear understanding of it. Unconscionable, unduly harsh, power balance; all big terms that are not clearly defined in case law. If I had a better understanding of those terms, and the grounds to which they would apply, then I might be in a better position to negotiate a valid domestic contract with my partner.

Now, taking your example - what if one party worked while the other took care of all of the domestic responsibilities. After a twenty-five year marriage they separate - with all assets in the name of the working party, while the other has not a cent to their name. Regardless of the intentions of the parties when signing the agreement, such a result would be so inequitable as to offend public sensibilities.

I can understand this. If you have a domestic contract which keeps finances and assets separate, then you're essentially saying that you both will be self-sufficient and financially independent, at least from my prospective. If you enter such a contract and then live a family life whereby one is dependent on the other (i.e. stay-at-home spouse), then your actions don't reflect the agreement and the agreement shouldn't be valid.

However, what if this isn't the case? Say both partners work full time, have careers, and stay that way throughout their relationship. No joint accounts, assets or debts. By all intensive purposes, they lived by the domestic contract. Here's the kicker though: there's a significant income gap between them. One partner makes 35K per year, while the other makes 3 times that. I have a feeling that any judge could put a spin on that and say that the lower earning spouse suffered a disadvantage after the relationship ended, and s/he should be compensated. Seems like you can't win.

Perhaps the one party signed the agreement against the advice of counsel, because they did not believe the relationship could fail or, if it did, they would always be taken care of? The courts protect the rights of parties to make disadvantageous bargains; however, given the intensely personal nature of family law, they may step in to prevent results that are unjust.

I'm not sure how valid that argument would be. If one party signed the agreement despite the advice of legal council, then s/he would still understand the implications of the agreement, and they ought to know that the very nature of the agreement is to explicitly state that s/he won't be always taken care of. While I don't clearly understand the legal concept of unconscionable, unduly harsh and power balance, I don't believe that the above example would qualify as such. But, as stated early, seems like the one with the assets typically holds the short end of the stick with this kinda stuff.

[Canadaguy]

- there are too many other variables and circumstances that were unforeseen and not included at the time the agreement was drawn up, and things change. Loopholes "open" that make the terms previously "agreed" to, suddenly arguable/attackable.

What if every year the parties did a review on the pre-nup and signed (ILA witnessed) an update/amendment for any (if any) changes apply and stating they both feel the contract is still valid. Do this every year then after 25 years they split the loop hole would be covered?

[Mess]

Happy anniversary hun! Can you sign here to waive spousal support?

[OrleansLawyer]

What if every year the parties did a review on the pre-nup and signed (ILA witnessed) an update/amendment for any (if any) changes apply and stating they both feel the contract is still valid. Do this every year then after 25 years they split the loop hole would be covered?

While a trend to re-affirm the agreement on an annual basis would strengthen it, I would be surprised if many people obtained ILA and re-affirmed on a yearly basis.

[hadenough]

Highly improbable that once a year one would say to other "hey honey, look! It's THAT time of year again! Let's go update our pre nup n grab a bite to eat afterwards."

Not bloody likely :s

[Teenwolf]

What if every year the parties did a review on the pre-nup and signed (ILA witnessed) an update/amendment for any (if any) changes apply and stating they both feel the contract is still valid. Do this every year then after 25 years they split the loop hole would be covered?

Yearly doesn't seem practical; however, if there's a change in circumstance, then it might be a good idea to update it.