No-fault divorce has permanently altered the marriage-relationship—and not always for the better. Before the advent of no-fault divorce, most states had limitations on when divorce was permissible—typically severe misconduct was required to be shown. The person seeking a divorce would have to prove that there is a serious reason for divorce, such as infidelity, severe mental disability, and the like.
No-fault divorce, by definition, removed any such requirement. Even in states where there is both a no-fault basis for divorce as well as fault bases (such as Kansas), there is no advantage to alleging fault and, therefore, judges don’t favor such arguments.
Removing the burden of proving fault in order to obtain a divorce has incentivized divorce, quite predictably. The rules that judges apply to determine issues like division of assets and debts and spousal support (alimony) are generally fixed, although judges do have broad discretion to deviate from them. Most are surprised to learn that these rules have little or nothing to do with justice, personal conduct, or fault.
The best way to take your marriage (and potential divorce) out of the realm of these rules is for you and your spouse to create your own rules that the judge must apply in the event you divorce. That is the purpose of a prenuptial agreement (a/k/a “antenuptual agreement”). Whereas once such agreements were disfavored in law and strictly scrutinized, now they are as enforceable as more ordinary contracts. An experienced family law lawyer can help you work through and create such an agreement.
Prenuptial agreements can govern anything from responsibilities and financial concerns during the marriage to how the parties will handle their financial affairs in the event of a divorce. They can be used to ensure that certain property remains non-marital, such as premarital property. The parties can remove the incentives divorce that are inherent in the law by adding fault concepts back into the marriage, such as financial ramifications in the event of certain types of marital misconduct.
Sometimes people forego prenuptial agreements but—typically after some marital disputes—they decide on a postnuptial agreement: think of it as a prenuptial agreement after you are married. The typical scenario is that one partner engages in some misconduct that causes the other to want to end the marriage.
In order to incentivize that partner to remain in the marriage, often certain concessions are necessary. Those agreements must be memorialized in a post-nuptual agreement or they will not have effect in the event of an eventual divorce. Both types of marital agreements are highly technical; one misstep in drafting the agreement could cause a judge to throw out the agreement or to severely limit its effect.
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