Most married people fully understand what “faithfulness” and “adultery” mean.
As for the issue of fault in a divorce, each couple should have to decide for themselves what they are willing or unwilling to accept in marriage. I think an argument could be made that all people should have to sign a contract of sorts before getting married.[/quote]
People fight over all kinds of stuff not just sex outside of marriage.
Is watching porn all time being unfaithful? How about fantasizing in your mind only?
I’m not sure what kind of contract you have with your husband but if it’s like a promise to have dinner together at least 3 times a week, and not watch tv more than 20 hours per week, the terms are likely unenforceable in court.
I think that writing those conditions down on paper might exacerbate any disagreement because it sets the stage for an adversarial contractual rather than a give and take “growing and changing together” relationship.
One spouse could easily take the stance that whatever is not convered by the contract is not part of the deal.
Btw, could you post a sample contract so that we can learn?[/quote]
Our agreement was designed specifically not to exacerbate disagreements. It’s not adversarial at all. To the contrary, it was designed to establish an understanding of what we can expect of our marital relationship. Most people don’t discuss these things, and that’s a big part of what causes so many divorces — when expectations are misaligned, and the the partners are unable/unwilling to communicate openly with each other.
You asked for a sample, so here goes. Don’t blame me for the length…you asked for it. 😉
……
Purpose: In
this Agreement, made in a spirit of mutual cooperation, we desire to define what our respective property rights are after marriage. We believe marriage is a lifelong commitment. A good marriage requires much sacrifice on the part of both spouses. Our current laws prevent spouses from making the necessary contributions to the family and marriage since they have to think selfishly to prevent themselves from being financially and emotionally devastated in the even of a divorce. Our beliefs and viewpoints are detailed in the Addendum to the Post-Nuptial Agreement attached to this Agreement as Exhibit 1.
…blah, blah, blah…lists existing separate property and how future property will be categorized (inherited wealth belongs to that spouse, irrespective of fault, etc….Discusses how commingling of these funds will not constitute a change of character of this property into community property, etc…Both have had independent legal counsel, blah, blah, blah.
Exhibit 1:
Philosophy:
We believe marriage is a lifelong commitment. During the course of a committed (lifelong) marriage, many decisions are made which benefit the marriage and family, but would disadvantage a spouse in the event of a future divorce. A good marriage requires much sacrifice on the part of both spouses. Our current laws (no-fault, unilateral divorce, and lack of adequate spousal maintenance, etc.) prevent spouses from making the necessary contributions to the family and marriage since they have to think selfishly to prevent themselves from being financially and emotionally devastated in the event of a divorce. These laws encourage selfishness, and selfishness dooms marriage. We believe all “traditional” causes of divorce would not exist if not for selfishness. Therefore, we are attempting to create a document that will protect the spouses and children from the selfish acts of another. The spirit of this document is to protect and defend the marriage, and to avoid divorce by assigning negative consequences for grievous actions.
We believe marriage is a partnership where both spouses complement each other’s strengths and weaknesses. The purpose of marriage is to provide the best possible environment for the offspring of that couple. This often means that parents will provide different, but equally valuable goods and services for the family.
…We firmly believe that homemaking is as valuable as wage earning, and find our laws are often lacking in fairness and compassion when spousal support and retirement awards are made. We affirm that the greatest financial asset in a marriage is future earning capacity/income earning potential of the wage earner(s). We recognize that a homemaker’s contribution is front-loaded, and requires extreme, long-term self-sacrifice. It is also recognized that a person who devotes him/herself to the occupation of homemaking is permanently disadvantaged if he/she should re-enter the wage-earning workplace, since his/her lifetime earning capacity/income-earning potential is greatly reduced. It is recognized by us that our current laws put homemakers at a distinct disadvantage where “no fault” divorce is concerned. We believe homemakers should not be penalized for providing the extremely valuable service of caring for their families.
…We also recognized that the wage earner can be penalized for the homemaker’s immoral and unethical acts. “No fault” divorce leaves the wage earner vulnerable to paying alimony and child support to a spouse who commits adultery, physically or emotionally abuses him/her, or decides to leave, unprovoked. Half of the community property is lost to the spouse who was not committed to the marriage. The wage-earning spouse might have to pay, indefinitely, for a spouse who tore his/her family apart. We believe this is unfair and unethical.
With this agreement, we hope to create a marriage that has some safeguards for the spouse who has integrity and is committed to the marriage. Since we believe “no fault” divorce rewards immoral and unethical behavior, and puts a committed spouse in an unfairly vulnerable position, we jointly agree that , in the event of a divorce, we choose to adopt a “fault-based” distribution of assets. Although child custody cannot be determined in a nuptial agreement, we would prefer that the children also remain with the committed spouse, and that this spouse have priority where child custody is concerned.
For the purposes of this agreement, fault shall be based on one (or more) of the following:
1. Adultery during any portion of the marriage until divorce is finalized (period of separation considered marriage). There is no condonation. Adultery is defined as a romantic (emotional or physical) relationship with another person. This include romantic kissing or spending time with a romantic interest, to the detriment of the marital relationship. If it can be proved that adultery existed during the marriage, even if the divorce decree is final, the case can be appealed, and the offended spouse can claim assets based on fault.
2. Extreme physical abuse, documented by at least two police reports.
3. Desertion or abandonment of at least three months, where the abandoned spouse does not agree with the separation.
4. Extreme, continuous alcohol or drug abuse with the user being unwilling to attend counseling.
-Drugs: 1 or more weekly, average, and continuous for over 1 year.
-Alcohol: 5 or more drinks per day, average, and continuous for over 1 year.
5. Extreme emotional abuse. Defined as continuous, callous, knowing and malicious intent to hurt the other spouse. Continued for at least one year, and where the offending spouse is unwilling to attend counseling for as long as the problem continues.
6. Intentional and grievous actions which jeopardize the health and well-being of the family. Must be severe enough that life is considered intolerable and that the offending spouse cannot and will not remedy the problem or refrain from such behavior for the remainder of the marriage.
7. “Unilateral” divorce without one of the preceding factors as the cause. An exception to this can be made if the couple seeks counseling, at least once weekly for at least 18 months, and the counselor determines that one spouse is rendering life so intolerable that the counselor recommends divorce. Both spouses must agree upon the choice of counselor. If the counselor determines that the couple should divorce, the assets shall be distributed as in our “mutual consent” agreement.
At no time shall age, gender or physical attributes (height, weight, age, baldness, wrinkles, illness, etc.) be considered fault for purposes of this agreement.
[It goes on, but I will spare you the rest. Not edited for typos, etc.]
