Sword of Damocles post-nuptial agreement

[angela146]

This is both a story idea and a bit of a real-life issue.

Corporations have "poison pill" defenses. Can couples have something similar?

Is it possible to write a post-nup that says if either spouse decides to stop having conjugal relations with the other that the "injured" spouse (the one who still wants to get laid) gets the lion's share of the community property?

For the sake of argument, let's assume there are no children and that some lawyer could write a definition of "how much, what kind and how often" to the satisfaction of both spouses (at least when the post-nup is created).

My basic question is, can you have a post-nup that essentially says, "I promise to continue to have sex with you, and if I don't you can take me to the cleaners"?

I'm completely ignorant of such things. I've never been divorced and I've never had anything go seriously sour in my marriage. My husband and I don't have any kind of pre/post nup (having been married when we were young, foolish and flat-broke).

I've just seen a few of my friends and relatives go through the "I'm 43 now, dear, and I'm done having sex," routine. Is there anything a couple can do ahead of time to create an incentive to "put-out or get-out (and leave the retirement fund behind)"?

I feel like writing a story that explores this and then I want to talk to a matrimonial lawyer (and not be laughed out of their office).

 

[Weird Harold]

For the sake of argument, let's assume there are no children and that some lawyer could write a definition of "how much, what kind and how often" to the satisfaction of both spouses (at least when the post-nup is created).

My basic question is, can you have a post-nup that essentially says, "I promise to continue to have sex with you, and if I don't you can take me to the cleaners"?

I strongly suspect that one party to the agreement would be under duress -- one party is in a position to say, "I could take you to the cleaners right now, but..."

I know I wouldn't sign that sort of agreement unless the settlement terms were better than I could get in an immediate divorce.

 

[angela146]

I strongly suspect that one party to the agreement would be under duress -- one party is in a position to say, "I could take you to the cleaners right now, but..."

I know I wouldn't sign that sort of agreement unless the settlement terms were better than I could get in an immediate divorce.

True. If the well is already poisoned, it's too late. It only really works if they create the agreement at a time when neither of them is at all interested in using it.

Here's my bizarre spin: I not looking to to hold my husband over a barrel. I want to create an incentive for *me* to do the right thing when the time comes.

What disturbs me is that the women I know who have gone through it had some pretty significant personality changes in their early to mid forties. I don't know what it feels like (I'm 32) and I don't know if it's going to happen to me. The personality change is so striking that I don't know if I would even care anymore once I go through it.

Women who have less economic power than their husbands are essentially "forced" by their situations to work on the problem and figure out some kind of solution. But I'm in an extreme situation.

What keeps me with my husband is the fact that I love him dearly, his ability to drive me nuts with the touch of his hand (or the look in his eye), and the fact that he keeps my estrogen-related mood swings under control. Oh, and he's like really smart too - oh and his sense of humor - and some other stuff.

If my body pulls the plug on my estrogen levels, we're down to the "I love him dearly" thing - and the humor/intellect/other stuff. With my bi-polar "issues," I don't want to trust myself.

I want to keep a balance of power.

Worst case scenario - I hit the wall at age 43, turn into a shrew, kick teacher-boy to the curb - and a year or two later come to my senses - alone in a big empty house with a lot of money, a career - and on my knees begging the love of my life to come back.

 

[impressive]

If you don't want the sex, having incentive to provide it is just going to result in some bad sex. Unless, of course, your husband would be okay with just having company for his orgasms.

 

[TheEarl]

If you don't want the sex, having incentive to provide it is just going to result in some bad sex. Unless, of course, your husband would be okay with just having company for his orgasms.

Seconded. It strikes me as odd the idea that forcing yourself into sex for money would be a good thing. Surely you'd want to sort out the underlying problem, rather than trying to treat the symptom of 'no sex'?

</blunders out of the place where he knows not what he's talking about>

The Earl

 

[Arafura]

I agree with imp and TheEarl...sex for the sake of a pre-nup is going to be no fun at all.

If one partner just completely loses interest in sex, and isn't prepared to take the necessary steps to regain interest (and that is fully possible, most of the time), maybe an open marriage scenario could work for some people. That way whoever still wants sex gets is, but you're still together for love and companionship.

 

[colddiesel]

"For better for worse" etc.

 

[Oblimo]

"For better for worse" etc.

There's worse and then there's and irreconcilably intolerable.

Angela, as for your legal question: it greatly depends upon the jurisdiction in which you (or your characters) live. Post-nuptial agreements are more commonly known as "mid-nuptial," and some (US) states don't allow them at all. For some background on mid-nups (in NJ at least), take a look at Pacelli v. Pacelli.

Additionally, if something is not grounds for divorce/annulment or separation, typically it cannot be made as a binding subject of an X-nuptial agreement. (But you'd be surprised, the kinds of things that are grounds for divorce/annulment in some states. ) Finally, a mid-nup is almost always about what happens to money & property in the event of a divorce, not conditions upon which a marriage must continue.

All that being said...what's a plausible situation where conjugal relations become a subject matter of a marital dispute with legal ramifications? The answer (again typically) is separation. Many states have a filing for separation as a optional (sometimes required) step prior to the filing for divorce. Most of those states require, by statute and court order, the couple to enter marital counseling/mediation. (Court-ordered counseling can also be brought on by a domestic disturbance, arrests for public intoxication, etc.) And believe you me, sex (or the lack thereof) is an open battlefield in counseling.

Another is religion. Catholicism and conservative Judaism take their martial bouncy-bouncy very seriously. A denial of relations is grounds for a get (a contract of divorce) in rabbinical law--traditionally, the marital right to sexual relations belongs to the wife in rabbinical law, so the husband cannot get a get on such grounds--but rabbinical law is idiosyncratic these days. So characters who take their faith seriously could be affected by counseling by their priest/rabbi/minister as much as a judge.

Is that helpful?

 

[oggbashan]

"For better for worse" etc.

"In sickness and in health" covers mental illness as well. Living with a partner's depression can be hell even when you know that your presence is helping.

A lifetime contract means enjoying the good times and enduring the bad.

Og

 

[Oblimo]

A lifetime contract means enjoying the good times and enduring the bad.

Although I'd say there are times that become unendurable, although many people disagree what those times are.

And lifetime contracts are indentured servitude and null by action of US law. That's why marriage is governed by statute, not contract law (although, interestingly, engagement still is considered a contract in many states--particular when it falls through and a would-be groom asks for the ring back ).

 

[Jenny_Jackson]

A pre-nup, or a post-nup for that matter, deal only with the division of property. In this state these agreements must end after 10 years. The question is, should one partner keep on fucking like the Energizer Bunny, lest he/she loses rite to his/her fair share of property?

My first thought is that Harold is correct. The fuckee would feel under deress while the fucker would feel cheated.

But my second thought is from a different direction. Doesn't this treat marriage as a business contract? If so, doesn't that degrade the relationship, making the need for a post-nup much more likely?

For a story, I can see some possibilities, Angela. But in real life I can't see how it could work.

 

[3113]

I want to create an incentive for *me* to do the right thing when the time comes....What disturbs me is that the women I know who have gone through it had some pretty significant personality changes in their early to mid forties....Women who have less economic power than their husbands are essentially "forced" by their situations to work on the problem and figure out some kind of solution.

Angela, I mean this sympathetically, but you're reasoning is...bizarre. And not only because problems between a husband and wife should be worked out together. Thing is, your reasoning really ignores the real situation. Taking away the hormonal adjustments (which we'll get back to), people don't EVER stay the same as they live together and grow older. They change, develop, discover new ambitions and goals, learn different lessons from bad times and crises. I know you want your marriage to hold together through thick and thin, forever and forever and forever. I want mine to, also. But it requires that both parties adapt, change, evolve. NOT that both parties sign some contract to STAY THE SAME!

Which means, in a worse case scenario, that you can't eat your cake and have it, too. You can't change, develop, grow and change to the point where a relationship isn't working...and yet assume that if you just have this sword over your head, the relationship can be put back together again. Do you think your husband really wants to force you to find a "solution" to the problem if there is no adequate solution? That he wants you to make him happy even though it makes you miserable? Will a half-baked, barely working solution, created out of duress (this sort of blackmail/incentive) satisfy? I sincerely doubt it. I wouldn't want my spouse to keep saying to me, "If it wasn't for our contract, I'd be out of this bed and gone!"

As to the hormones, mental problems and such, I know, first hand, how that can make you feel like the relationship is unbalanced, that one partner is working harder than the other to hold it together, and how very unfair that seems. But you never, never know what's going to happen. If he went through something terrible (God forbid) and went into a horrible depression where, for months and months, he couldn't manage to have sex with you...now where's that balance? Do you see? Anything could happen in the future. The balance shifts and changes. Right now, or when you hit 40, he might have to shoulder the burden of the marriage and sacrifice. But menopause does end. And women do have happy sex lives once the hot-flashes and mood swings are over. But men grow impotent, some have health problems, and men also, at such ages, go through mid-life crises and depression. And then it may be your turn to shoulder the burden of the marriage and the sacrifice.

Marriage is never a one-way street and optimally, couples should solve problems together as a team. But I promise you, if your husband is shouldering the burden, and still loves and cares for you while doing it, then it is his pleasure. It is his mission, his way of feeling like a hero and a man. It is not a question of "balance of power," with you having the power and him having none. It's about the power we feel when we can take on someone else's problem and provide a solution. My guess is that husband feels plenty empowered in doing that--or the marriage would already be on the rocks; and I promise you, if he does feel that way, he'd hate for the situation to be reversed and for you to have to be solving the problem, with him having no input on it at all. Don't take away from him his power to solve or help you solve problems...not until circumstances force you to do so.

 

[Belegon]

This whole thing is bizarre to me. I can see how it could be useful as a plot device, but if someone ever asked me to sign an agreement of this nature, whether it was about sex, weekly trips to the movies or doing the laundry, I would seriously question the basis for the relationship...