More On Pre-Nups and Lane v. Lane

When Lane v. Lane (on pre-nups) was initially rendered, I was taken aback by the division of the court. Our initial posting simply quoted from Justice Lambert’s opinion, Justice Grave’s concurring opinion and Justice McAnulty’s dissent. I thought the quotes quite clearly and tellingly illustrated insight into the high court’s view of marriage rights and responsibilities. The case had the potential to be campaign fodder, and I was prepared that this site would be a sounding board without me interjecting my views. Several women lawyers were vocal that this case illustrated why we needed a woman on the Kentucky Supreme Court. No comments were posted at that time, though.
The case is now final and was digested here. Since then I received these comments by email:
from Mike Stevens, Kentucky Law Blog:
“I must still be a romantic as I really have a problem with antenuptials addressing the property rights acquired in the future and the obligations of the parties in the event of a divorce. Why can't they simply make sure what is separate property now stays separate and no intent to commingle or make marital, and any maintenance issues be treated like any maintenance issues now based upon standard of living parties became accustomed too, length of marriage, etc.”
“I, for one, will miss the cut through to the chase, common sense, no nonsense analysis offered by Justice Graves in this opinion and his other opinions (Earle v. Cobb, for example). Whether or not you agree with his jurisprudential analysis of what transpired in this agreement or others of similar ilk, you must surely agree that he addressed the real problems presented by antenuptial agreements which must transcend simple contract analysis in the context of families and children.”
“I know you might disagree with me on this but just wanted to bug you a tad. The more marriage is considered a business and financial contractual relationship, the more likely the children end up being marital assets and the parents being marital asses.”
And (this case lit a spark!) in a follow up email giving me permission to post, he added:
“On an aside, the more the courts analyze the covenant of marriage as a civil contract, the harder it will be to dispute the encroachment of civil union contracts of same sex couples. Although, I disagree with the encroachment and object to same sex marriages for a host of reasons (not all Biblical), I can not ignore the logic and precedent being set up by this type of contractual and bargaining analysis premised on unconscionability. For that reason I usually use the term "anti-nuptial contracts"; unequal bargaining, giving up rights without knowing what the rights are and what you are getting in return, purely speculative and without consideration (monetary or personal), and worse yet - a preplanned exit strategy. Hmmmmm. Sounds more like rules of disengagement than an engagement.”
All interesting points.
And, as we posted here, drafting these contracts is not for the faint of heart.