Posted on 12/30/2004 8:52:27 AM PST by Radix
In a possibly precedent-setting case, the state Appeals Court has ruled that an ex-wife is entitled to alimony even though she signed a prenuptial agreement waiving it.
Donna Austin was 37, and Craig Austin was 35 when they were married in May 1989, each for the second time. Two days before the wedding, Craig Austin presented Donna with a prenuptial agreement, which she signed, according to her attorney, Dana Curhan.
The Appeals Court upheld the portion of the prenuptial that protected assets Craig Austin had acquired before the wedding. But it said Donna Austin's waiver of alimony was not reasonable at the time she and Craig Austin signed the document.
``It was unreasonable to expect that his spouse, who then had no assets and negligible earning capacity, would contribute to the marriage by raising his child and by supporting his ability to work outside the home, with no expectation of future support, no matter how long the marriage, and regardless whether she might never acquire assets of her own,'' Justice Fernande Duffly wrote in the court's opinion.
Craig Austin's attorney, Jacob Atwood, said he will appeal the decision. Atwood said Donna Austin benefitted greatly by receiving ``hundreds of thousands of dollars'' in the division of property assets at the end of the Sandwich couple's 12-year marriage.
``I think this decision flies in the teeth of the DeMatteo case,'' Atwood said, referring to a 2002 Supreme Judicial Court decision upholding prenuptial agreements except in cases where one of the marital parties was left with an extreme hardship.
But Donna Austin's attorney said, ``The court is saying that by waiving her right to alimony, she was essentially waiving her future rights, which was not a realistic thing to do.''
From fredoneverything:
Against Marriage
Cutting and Running, and Why Taipei Is Better
Mostly when I hear one of these radical feminist ladies squawking and clucking about whatever is disturbing her system at the moment, I don't listen a whole lot, because most of them have the insight of flatworms and run on pure bile. But I have to agree with them about marriage. It's probably a bad idea.
For a guy, I mean. (If you're a woman, listen to the feminists. They'll tell you why marriage is a bad idea for women: Men are rapists. All of us. We batter women like cannibal tempura chefs. We don't have feelings. We're no damn good. Stay away from us.)
But let me tell you why marriage is bad for guys. If you're a young fellow thinking about tying the awful knot, read this carefully.
Guys marry for bad reasons. When it comes to women, we have less judgment than bugs in a moonshine bottle. Guys marry charm. They marry a sweet smile, a perky toss of the chin. They marry clear skin and bright eyes, soft lips, warm hands. They marry curves in a pretty print dress and silken hair that smells like warm milk and new-mown grass. (Maybe that's straining the language. Steinbeck or somebody said it.) Men marry necking on back roads with crickets creaking in the woods and warm breezes and Sally is just so unspeakably wonderful they can't do without her.
Men marry illusion. Sally marries a pre-med.
We males have an infinite capacity for deluding ourselves. The charm of women doesn't last, any more than flowers in a mountain meadow. A requirement for a marriage license should be that the guy spend fifteen minutes thinking of Sally as twenty pounds heavier with crow's feet and PMS and no further incentive to control it. In five years she won't want to party. Little Richard will give way to easy listening. In a decade she won't even slightly resemble the lissome damsel he married. She won't like his friends unless they're boring. The fun and excitement will fade and life will be just life.
Charm has a short shelf-life. A fellow should ask himself: Is her mind such that he wants to spend forty years talking to her?
Maybe so. Some women are great that way. One was reported in San Francisco a few years ago, and I know of one in Canada. (Actually a fair number of gals are seriously bright. But Willy Bill probably won't marry one. Anyway, ask yourself the question.)
However, the overarching aspect of marriage, the one that ought to be part of the dictionary definition, is that Sally will get the children. She'll get the house too, but the world is full of houses. The kids are the killer.
Women have a mysterious power to fog men's minds. I hear Willy Bill saying, "Divorce? Impossible. Sally's adorable. Even if it happened, we'd still be friends." There was a case of this reported too. In central China. Pre-Confucius. Scholars debate its authenticity.
Willy Bill very likely will get divorced, which will very likely be Sally's idea, and she will get the kids with virtual certainty. Further (and he won't believe it in the full flood of hormonal misjudgment) she will in all likelihood use them against him. Even if not, she'll remarry and move to the other end of the country, and he will be lucky if he sees the kids a week at Christmas. Willy Bill now faces fifteen years of child support for children he will barely know. At best Sally will be heartless about it, at worst vengeful. The courts will support her every step of the way.
If you think this doesn't happen, regularly, think again. Think several times.
The way to avoid the morass is simply not to marry. Thanks to the Sexual Revolution, guys don't have to. Find one you like and live with her. If you get along, keep on living together. Maybe you will have a long, happy life together. It happens. However, most women give the marry-me-or-leave ultimatum in about two years max, which means that you'll have to find another. This is unpleasant, but then the variety is nice. Serial monagamy isn't too bad. (I personally prefer parallel monogamy, but it isn't real practical.)
Once you tie the knot, your house is toast. But the for-keeps breakpoint, the one that really hurts, is children. Dead serious, guys, watch this one. Here, Sally holds all the high cards. I talk to a lot of men who are going crazy because the ex just remarried and went to Oregon with the kids. They do this. All the time.
Remember that after the divorce, Sally is going to hate you. The divorce will have been your fault. You will have failed her in every way. You won't have met her expectations. That's the opening hand.
She will want to remarry. Fine. If you're crazy, maybe you will want to remarry. How much do you think she's going to want you around, after she has re-daddied your children? Is she going to tell New Daddy he can't take that promotion in Oregon because of your rights to see your kids?
As a rule, she won't concede that you have a right to see your sprats, or that they have any stake in seeing their father. Her rationale will be the passive-aggressive formulation, "Well, he's so insensitive I just can't believe he really wants to see them, blah blah blah."
This is Sally, remember, with the perky smile and soft lips.
Don't do it, guys. At least, don't do it unless you have a bomb-proof pre-nup saying that when the divorce comes, either party who leaves the region has to leave the kids with the other.
It's a hell of a way to begin a marriage. But do it. Do it because you can count on one thing: The courts will be absolutely on her side.
Better yet, if you want kids, go to Asia and marry. The women are feminine (consult your dictionary), beautiful, agreeable (consult your dictionary), and don't have cellulite.
Don't marry,guys. Stay single. The feminists are right on this one. And when you get married anyway and lose the house and kids, remember that weird columnist who said it would happen, and he was right.
No Way.
That is a far different thing that what you had previously posted.
Another from Fred:
To Marry, Or Not?
That's Easy
Were a young man to ask me, "To marry perchance, or remain forever single?" I would, given the hostile circumstances today of law and love, urge caution. "Marriage is a commitment of several years of your life, plus child support," I would say. "Do not make it rashly."
The question is simply, "Why marry?" As a young man full of dangerous steroids, your answer will probably be, "Ah, because her hair is like corn silk under an August moon; her lips are as rubies and her teeth, pearls; and her smile would make a dead man cry." This amounts to, "I'm horny," with elaborations. It is as it ought to be. The race continues because maidens are glorious, and striplings both desperate and unwise.
Note, incidentally, that by the time October rolls around, corn silk is shriveled and brown.
Why marry, indeed? In times past, marriage occasionally made sense. Life on a farm required two people, a woman to work herself ragged in the cabin while the man carried heavy lumpish things and shot Indians. Later, come suburbia, the man did something tedious in an office and the woman did two hours housework and stayed bored for six. It worked, tolerably. In the Fifties, nobody expected much of life. It generally met their expectations.
And there was sex, though not enough of it -- the scarcity being the propellant behind matrimony. Back then, before the miracle of feminism, women had not yet commoditized themselves. A lad had to pop the question before he got laid regular. Women controlled the carnal economy and, in a world that was going to be boring anyway, that was probably a good thing. At least kids had parents.
Times change. Some advice to young fellows setting forth:
First, forget that her lips are sweet as honeydew melon (though not, of course, green). It doesn't last. One of nature's more disagreeable tricks is that while men are far uglier than women, they age better. Remember this. It is useful to reflect in moments of unguided passion that, beneath the skin, we are all wet bags of unpleasant organs.
Soon you will be a balding sofa ornament and she will look like a fireplug with cellulite. Once the packaging deteriorates, there had better be something to get you through the next thirty years. Usually there isn't.
Prospects have improved for the single of both genders. Sex is nowadays always available. If you don't marry Moon Pie, which would be wise, you may get another chance when she comes back on the market with the first wave of divorcees. It's never now-or-never. Getting older doesn't diminish your opportunities. As you gain experience, you will recognize the tides, the eddies, the whirlpools of coupling -- the urgency of the biological clock, the lunacy of menopause. Men by comparison embody a wonderful clod-like simplicity.
As you ponder snuggling forever with Moon Pie, compare the lives of your bachelor and your married friends. The bachelors come and go as the mood strikes them, order their apartments with squalid abandon, drive Miatas or Harleys if they choose, and live in such pleasant dissolution as is consonant with continued employment. The married guy lives in a vast echoing mortgage beyond his means, drives sensible cars he doesn't like, and loses his old friends because he isn't allowed to hang out with them.
Self-help books to the contrary, marriage does not rest on compromises, but on concessions. You will make all of them. Perhaps it doesn't have to be this way. But it is this way.
Moon Pie has only one reason for marriage: to get her legal hooks into you. She doesn't think of it in these terms, yet, and she has no evil intentions. She just wants a nice quiet home in the remote suburbs where she can live uneventfully, raise progeny, and keep her eye on you.
If you think surveillance isn't part of the contract, try going out late with your old buddies. Marriage is an institution founded on mistrust. If she thought you would stick around if not compelled, she wouldn't need marriage. She wants monogamy, at least for you and, with some frequency, for herself. She knows viscerally that you would prefer the amorous insouciance of an oversexed alley cat. You know it consciously. Marriage exists to control the male, until recently a good idea. Now, however, she can support herself, and doesn't need protection. She doesn't need you, or you, her.
She will, however, want to have children. Women do. At which point, God help you.
Given the schools, drugs, latch-keyism consequent first to working parents and then to divorce, and the cultural pressure on children to be slatterns and dope-dealers, reproduction is a gamble. You may not even particularly like them, or they, you. Nobody talks about this, but how many people do you know who hardly talk to their grown children?
And you've just tied yourself into twenty years of raising them.
The moment Junior enters wherever it is that we are, Moon Pie will have you screwed to the wall. She won't think of it this way, yet. She'll be delighted with the cooing bundle of joy, his little fingers, his little toes, etc. But divorce usually comes. The chances are two to one that she will file: Women are more eager than men to enter marriage, and more eager to leave it -- with the kids, the house, and the child support. It won't be amicable, not after seven years. You will be astonished at how ruthless she will be, how well she knows the law, and how utterly hostile to divorcing fathers the law is.
You don't understand how bad the divorce courts are. You probably don't know what "imputed income" is. You think that "joint custody" means "joint custody." Think again. Quite possibly you will have to support her while she moves with your kids to Fukuoka with an Air Force colonel she met in a meat bar.
In short, marriage often means turning twenty-five years of your life into smoking wreckage. Yes, happy marriages exist (I personally know of one) and there are the somnolent marriages of habitual contentment or, perhaps, of quiet resignation. But the odds aren't good.
Permit me an heretical thought. In an age when neither sex economically needs the other, in which women do not need protection from wild bears and marauding savages, not in the suburbs anyway, perhaps marriage doesn't make sense, at least for men. The divorce courts remove all doubt. A young fellow might do well to stay single, keep his DNA to himself, pick such flowers as he might find along the way, and live his life as he likes.
No, it's not. I had this happen to me actually. The pastor LOST the marriage license. I asked my ex-wife at the time to handle it as I was working and she had copious amounts of free time. She never did.
We divorced under common law statutes in Texas.
Agreed!
More spam from me by Fred:
Marriage, Bubonic Plague, And Infected Warts
If You Have A Choice, Go With The Warts
If I could offer a young man one piece of sage advice, it would be this:
Don't get married.
Don't do it. Come the divorce, as come it probably will, the courts will systematically shear you of your children, your house, and huge amounts of your income for twenty years. Don't do it. It isn't worth it. Nothing is.
My saying this usually brings, from women, cries that I'm an extremist or woman-hater. No. The problem is not women, but the courts. Men can behave every bit as reprehensibly as women, though they go about it differently. But the judicial system, which is politicized to the gills, utterly favors women over men in divorce cases, without remorse, decency, or concern for children.
Should you doubt this, read, before you pop the most foolish of questions, From Courtship to Courthouse by the divorce lawyer Jed Abraham.*
Writes Abraham, "If you're like most men, you're married, or you hope to marry some day. You think you deserve to live happily ever after, but if things don't work out that way, you'll get a civilized divorce and move on. You'll stay pals with your ex, and you'll see your kids as often as you want.
"You have no idea what you're getting into."
And you don't. Not the faintest freaking clue.
A few facts from Abraham:
"The odds are 50% that your marriage will end in divorce. The odds are 70% that your divorce will be filed by your wife. The odds are 80% that your wife will get custody of your children-plus child support, alimony, and/or a hefty chunk of your property."
That is how it is.
Yes, I know: You don't think this applies to you. Cup Cake loves you. She would never behave in such a way. Think again. You have no conception of the hatred that divorce engenders. Men are callous; women are mean. When a family breaks up, when a life dreamed of disappears in flames and emotions go limbic, women are not the kinder sex, and certainly not the more rational. And Cup Cake will have the absolute upper hand, with the full power of the state to help her express her dissatisfaction with you.
Abraham: "If your wages are not withheld and you fail to pay your child support, the State will garnish your pay, slap liens on your property, intercept your tax refunds, report you to credit agencies, discontinue your driver's license, suspend your professional and business permits, hold you in contempt of court, put your face on a wanted poster, throw you in jail, and deny you food stamps. But if your ex doesn't spend that very same support on the children, the State will do. . . nothing."
It gets worse. There is, for example, "imputed income." This means that your child support will be based not on what your children need, not on what you earn, but on what the court decides you could earn.
Don't do it.
If you love Cup Cake, live with her. Be kind to her. Be loyal to her. She may be as nice as you think she is: Many women are. Buy her roses. Just don't marry her, or have children with her. If the laws were even-handed, marriage would be an admirable institution. The laws aren't equal.
But it's the kids she'll use, should things get nasty, to tear your guts out. If you're sure that Cup Cake won't do this, you're crazy. True, she may not. Not all women do, or not to the same degree. But you won't know until it's too late. And the courts will do anything she wants.
Abraham: "Your ex will warm to calling all the shots. She may cancel your visitation now and then. If she's truly mean-spirited, she'll go much further. Under the cover of her court-appointed role as sole custodian, she'll systematically sever your relationship with the children. She'll badmouth you to them. She'll schedule their extracurricular activities during your visitation time. For good measure, she may accuse you of domestic violence and child abuse."
Think "joint custody" is the answer? The courts won't enforce it. What are you going to do-sue Mommy? The kids will hate you for it. Do you believe in pre-nups? The courts ignore them. Read Abraham. It's all there.
Then, says Abraham, there's the killer: "More efficiently, your ex may simply move with the children to a distant community, with the law's acquiescence."
Kids are the crunch, guys. They hurt. And she will know it, and use it. The courts will help her. At bottom, the position of the courts is that the children are her property, like furniture. Judges don't care about you at all.
Ever drive away from what used to be your home, with your daughter of four streaking across the parking lot, yelling, "Daddy! Daddy! Please come back!"-and you can't?
Ever have your little girl of four say, "Daddy, can I get my birthday present early?"
"Why, Pumpkin?"
"Well. . . after the divorce we might move, and I won't see you again."
That's what you are in for, guys. Don't do it. You'll be suicidally depressed, miss your kids to the point of desperation, be almost frantic-and the courts will make sure you can do nothing about it. The ex will probably enjoy it.
That's the reality. Don't believe it? Talk to men who have been there.
Why do women do these things? Not because they're evil. Cup Cake is probably a perfectly decent woman in her dealing with the rest of the earth. She'll do it because she hates you, which is the normal outcome of a divorce. She'll do it because she can. She's furious because the marriage didn't work, which will be entirely your fault.
And the law gives her every incentive: She will get the house, the kids, the child support-and she knows she will. If women knew they had an even chance of not getting custody, of having to pay child support, the divorce rate would drop like a prom dress and joint custody would suddenly mean joint custody. Women love their children as much as men do.
But that's not how it is. The courts encourage divorce, and they rape men. Get used to it.
Abraham: "The odds are it doesn't pay for you to marry and have kids."
That's a fact, guys. Think about it.
The fedstategov.con has become the god of the marriage business. Now they are allowing sodomites to be married in the same way the God of the Bible has told man and woman to do.
So IMHO marriage no longer means the same thing in America. As far as I am concerned I would not want a marriage license from the state. I would get married in a church that has not signed a tax exempt status with the fedgov.con.
And if I could not find a church like that then I would marry as God decreed. When you say a vow and consumate the marriage you are married in Gods eyes IMO.
"Lawyers should be sued for malpractice"
Time travel is easier.
Last and certainly not least, a little more spam from me, by Fred:
Marriage, Horror, And Susan Reimer
Take Horror. It's A Better Bet.
July 14, 2003
Were I to offer thoughts on marriage to young American men today, in these the declining years of a once-great civilization, my advice would be as follows: Don't do it. Or, if you do, do it in another country. In America marriage is a grievous error.
And why so? Because of The Chip. The Attitude. The bandsaw whine of anger, anger, anger that makes American women an international horror. It's there. It's real.
You, a young man, may not recognize the Chip if you have never seen normal, warm, happy women. If you are twenty-something and haven't been out of the US, you haven't seen them. They exist by the billion--in Latin America, Singapore, Taiwan, Malaya, China and, last I looked, France and Holland. And of course not every woman in America carries the Chip. None of them think they do. Yet it is the default, the usual, what comes out of the box.
The following is a perfectly ordinary, everyday, bulk-lot example, suitable for poisoning a cistern:
"Other than a 29-inch waist and a full head of hair, there isn't much to recommend the twentysomething male…He is living an extended adolescence -- an adult-olescence -- and every immature, irresponsible, self-absorbed thing he does is reinforced by the latest issue of his favorite men's magazine." (Susan Reimer, a columnist for the Baltimore Sun. I bet she goes out a lot.)*
Hers is the Attitude--and what they think of you. It is the defining trait of American women. Exceptions exist, and they have my apologies, but they are few and no, sport, your Sally probably isn't one of them. They're coiled to bite. As soon as problems arise in the marriage, they turn into Susan.
Susan Reimer is what is out there, guys: bitter that no one wants her (as who in his right mind could?), sure that no one is good enough for her, never having grasped that those who would be loved must first be lovable. Understand this: Susan is America. Some hide it better, springing it on you after the ceremony, but Susan is the rule.
The Susans do not like men. Sometimes they actually take courses in disliking men ("Women's Studies"). Yet they want to marry one and have babies. For them, the contradiction actually makes a kind of sense, because (and they know this, believe me) they will get the house, the children, and the child support. For you, it makes no sense. You will get raped in the divorce courts. You don't know how bad it is. Don't do it.
A prime effect of marriage is backbreaking financial overhead: the excessive house in the prestigious suburb, the pricey but boring cars, all that. But if you don't fall into the trap, keeping your expenses down means you can live in Alaska or overseas and enjoy existence. There is more to life than debt service. Although these are bad times for marrying, they are extraordinarily good times for being single.
Now, children. This is sticky. You may want them, or think you want them, or think you may want them. She wants them. My advice is to move to almost any country where English isn't spoken and women don't want their husbands to be the mothers of their children. Any country inhabited by the Chinese would do nicely.
Incidentally, remember that it is never now or never. Your prospects improve with time. At thirty-five or fifty you will be perfectly able to find a good woman if you know where to look. See above list.
Remember also that these are not good times for having children in America. It is almost irresponsible. The schools are scholastically poor, drug-ridden, given chiefly to political indoctrination, and hostile to male children. The universities are little better. Divorce is hell on children and their fathers, and nearly universal. The country lunges to police-statedom and isn't, I suspect, as stable as it might be. Worse, worst, there is Susan Reimer. Her name is legion, and she seeps everywhere, like the effluvium of unwashed socks.
Further, there is no social duty to have children. Some argue that the white population is in decline. Tough. If the country chooses to make having kids undesirable, then let it decline. It is not your problem.
Now, you might well wonder, why are American women carrying the Chip? Practically, it doesn't matter: They do carry it, and will continue. Still, it is partly because from birth they are fed the notion that they have been oppressed, battered, cheated, deprived, harassed, used as sex objects, not used as sex objects, on and on. Being rational, you are perhaps inclined to point out that never has a female population been less any of these things, but don't bother. It will have no effect. The Chip is an emotional artifact to which they respond emotionally.
The bedrock of The Attitude is that everything is the man's fault. Wonders Reimer, "What is the answer, especially if the 20- and 30-year-old male is such poor marriage material?" She does not wonder, "If I am such a grindingly awful termagant that men on three continents are crossing their legs and feeling queasy over my mere column, and won't come near me except in a Kevlar bathysphere with a disinfectant system, maybe I'm doing something wrong. Gosh. I wonder what?"
Yet something more is going on, though one does not easily see just what. Note that in recent decades we have seen the invention by women of bulimia and anorexia, which no one had heard of in 1965. Men made them do it. At roughly the same time women began getting breast implants, which men also made them do, and then suing about it. In the same period they began having induced memories of being raped or satanically abused by their fathers. Men again. The psychotherapy racket grew like kudzu, a sure sign of deep unhappiness over something.
All of this is recent. You have to be fifty to remember women who were resilient, sane, psychically strong and, within the limits of an often sorry existence, content. But whatever the answer, guys, the problem isn't yours.
Spend a year overseas, however you have to do it. For smart, classy, just plain glorious women who often speak English, try Singapore. Argentina is splendid. Many places are. You would be amazed. See what's out there before you marry a gringa with her Inner Susan, who will one day burst from her chest like one of those beaked space-aliens in the movies, dripping venom. They're death.
Which is why RESPONSIBLE attorneys advise their clients to draft time tables into any alimony clause.
Rule of thumb is nothing for two years, rehabilitaive alimony after five years, and after 12 years there better be a decent lump sum alimony.
Also the alimony should not be specific but tied to the value and ability to pay. (the husband should not have to sell his assets and himself into poverty to keep the terms of the pre-nup).
Also bankrupcy courts have been re-examining the nature of payments to an ex-wife and deeming them "support" and thus not dischargable even if they were specifically agreed and called cash payment not support. (though paying her lawyer may be severable and not support)
I have beaten lawyers, on my own without a lawyer, in court before. It was a land use case and kind of fun. Most lawyers aren't to sharp...
True, but since she received "hundreds of thousands of dollars" in assets in the divorce according to the pre-nup, then I wouldn't consider it to be one-sided. She's already leaving the relationship being worth vastly more than when she came into it.
Wrong. It means the guy wasn't going to marry her and assume the risk of alimony. However, if she signed a contract forbidding the possibility of alimony, then he would get married. Its really that simple. There would have been no marriage without the agreement, and the guy's conditions for marriage should be respected and enforced. The judge, in essence, has breached the original contract.
Just gotta love judicial activism. Who needs laws when you have big brother to tell you whats good for you!
" any "man" who expects a woman to make a home, raise children, and not work, then divorce them"
I think you need to take a good look at the statistics regarding which spouse typically seeks a divorce.
This is a cottage industry my friend.
That is all to true... And most likely to be ignored.
It was not a one-side contract. It was a contract that allocated risk. In this case, the risk of potentially having to pay alimony was waived. In return, the guy agreed to marry her. Without waiving alimony, there would be no wedding. Its really no different than a construction contract whereby each party takes on different risk, and therefore, each party gets a different degree of reward.
We don't know what this means - $110,000 or $850,000, the value of the total asset pool, etc. Without hard facts, all we can do is second guess the judge, which is all anyone is doing. What we can make clear is that there is possibly another side to this story.
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