Make pre-nup agreements a requirement to get married. It's really the only fair way to handle the incredible universe of situations.
In addition, by pre-negotiating the financial considerations, the two parties might better be able to negotiate what's truly in the best interests of the children instead of weaponizing them.
It makes no sense to permit parents to agree in advance as to who should have parental responsibility. Things change, particularly when divorce occurs, and the best interests of the child is what matters - not what's agreed to beforehand.
Contracts inherently deal only with property interests of the contracting parties; they can (within certain bounds) address custody because our legal system treats that as a property interest that is subject to some domain-specific limitations and oversight, because the general premise is that it is not a natural property right, but a legal contrivance for the interests of the child because parents will normally be the best motivated to serve those interests. (Though there is definitely a not-uncommom view that children are naturally property, as well.)
Best interest of the children are to minimize parental conflict. No matter the outcome, a legal process inflames conflict.
Arab countries have this right. There is a strong presumption that kids go with mother up to some age, and father beyond. The rules are clear and simple, barring exceptional circumstances. Some of the Scandinavian countries do to. Barring exceptional circumstances, there is a presumption of 50/50 custody and child support is capped.
There is nothing to fight over, and fighting dies down. The US high stakes system, where child support is astronomical and where everything is up for fighting over, is the biggest loser here.
A 'general pre-nup' is a contradiction, practically. The point is to have extreme customization, at least as suggested by GP comment.
That's why the solution suggested to cumbersome divorce law would be to enforce pre nup agreements.
I don't have a strong opinion, but I bet a pre-nup could include many "decision trees" and mitigation strategies. I don't have a pre-nup, so I don't know.
No, it doesn't because:
(1) interpretation of legal documents, like interpretation of law, is not deterministic,
(2) pre-nuptial agreements, and other contracts, are subject to the law, rather than superceding it,
(3) marriage isn't ways about love,
(Of course, if you want to substitute a purely contractual arrangement—still subject to the law—for the default treatment provided by marriage, that's always an option, anyhow, and you can still have whatever celebration you want if entering the contract, and can skip legal marriage altogether.)
For example: My grandmother married a nice, kind man. A year later, he had a stroke. He increasingly became more and more abusive, compounded by the fact that he was home all the time and needed care. My grandmother finally kicked him out when he expanded the abuse to my aunt, 3 years younger than I and a teenager at the time. She was accused of abandonment.
And seriously, this isn't something they could have predicted and really is a good reason for the laws. There is no reverting back to a more optimistic time at these points. Even if they had a prenup, the only fair thing to do is to look over it and make sure it is still fair to the couple and their children, if any.
People aren't computers. We often don't "deterministicly revert to a sane state." Your approach is far too limited. The laws should be more understandable and expedient, and the overriding well-being of the child should be taken into account. The child's wishes should be taken into account as well to inform the decision but not decide it. CASA in the US do this well in the majority of cases
Yet she might be biased. Most people she meets needed it.
There are also many other scenarios in which a pre-nup or its terms can be invalidated during divorce proceedings.
It's going to be difficult to come up with an agreement that covers all scenarios and is enforceable.
The idea that a prenuptial agreement could effectively address the concerns of children not yet born is absurd. I have been married for around 20 years now, and today have two children in elementary school (i.e. prime age to screw them up with a divorce). When I try to imagine the prospect of my silly mid-20's self and spouse, writing an agreement about children around 9/11 that would make any sense today, I laugh out loud.
Even a prenup dealing solely with money and property would have little purpose years into a typical marriage of young people. Prenuptial agreements generally cover money and property that the couple had coming into a marriage. Not "common property" that is accumulated together after the marriage. My mid-20's spouse and I had no property and subzero net worth on our wedding day, it's all post-marriage common property anyway.
What if we made it mandatory to renegotiate the pre-nup every year or so?
I suppose that could cause problems of its own, but it would 'fix' the outdate pre-nup problem (which would in turn fix the general divorce law trying to address very specific cases problem).
I’m wondering if you’ve ever been married.
People generally don’t live their marriage with the intent of divorce, so planning in the way you suggest seems obtuse.
I can’t ever imagine my wife, who does not have a career and depends on my income, annually renegotiating a prenuptial agreement.
I haven't, apologies for being naive.
> People generally don’t live their marriage with the intent of divorce, so planning in the way you suggest seems obtuse.
Having witnessed firsthand how absolutely traumatic my parent's divorce was, I'm currently approaching the idea of long-term relationships, possibly with children, as one where "hope for the best, expect the worse" is the optimal policy.
Obviously, if I marry someone, I'd like to stay with them my whole life. Nevertheless, I think it important to ensure that if things do go south, which, statistically speaking, they do quite a lot, collateral damage is limited. By which I mean, there is nothing for the lawyers to fight over.
So, you want to fix a problem by requiring that people rewrite the law of marriage from scratch in order to get married and then also force them to redo the exercise annually to remain married?
Wouldn't people just opt out of official “marriage” for a regular contractual agreement to avoid the legal maintenance burden?
Even in the context of a prenup I'd think twice before making that statement. It seems logical someone inclined to write a prenup would think twice about having kids out of wedlock, until you consider marriage itself has a different set of rules in many countries which cohabitation with a partner and a child don't bring (and vice versa, you'd have the same problems cohabitating with a child as being married with a child). Many, many people have been spooked by divorce horror stories these past few decades.
Then some data [1]. It’s in there. Most marriages occur before the first child.
All I was arguing is that a prenup is an illogical moment in time to think about children in the context of divorce. I’ll go out and state that there is no way I could phantom what being a dad means before I was one for a few years. A prenup in my case would thus be empty of emotional baggage with regard to yet to be had children at that moment.
A “children and separation” plan might be a good exercise for any couple after one year with a first baby. But with these plans it is with everything else: those likely to think and talk about it, aren’t the most likely to get into a (messy) divorce.
[1] https://www.livescience.com/52215-divorce-risk-premarital-ch...