When you marry, the state draws up an implicit contract for you. Nowadays in most states it includes an absolute right to divorce at any time for any reason. Your property and child custody will be distributed according to rules set by the government. Child support and alimony or maintenance will also be established by the courts.
But suppose you don't like this deal the government offers. Most states now let you offer your beloved a prenuptial agreement to make sure that, in the event of divorce, she does not get too much of your money. "With all my worldly goods I thee endow," except for the really big bucks, of course.
David and Pamela's agreement was a fairly standard attempt to define David's liability: Pamela would get $30,000 for each of the first five years of marriage, and $40,000 for each year afterward, in the event of divorce. But there was a twist. Pamela and David agreed: If David wants the divorce for any reason except her sexual infidelity, his payoff obligation leaps by 50 percent.
Fast-forward a decade: David is now worth $24 million. Pamela and David get married and live the high life: no kids, expensive homes in Boca Raton, Fla., and Louisville, Ky. Pamela files for divorce, and David counterfiles.
Is a pre-nup clause conditioning the financial settlement, based in part on who wants the divorce and why, legal and binding?
In Kentucky, the answer is yes. (Read the latest court decision in the ongoing Blue v. Ford divorce saga at http://pub.bna.com/fl/021078.pdf.)
This is a potentially important legal development. We live in a world where individual choice is exalted as the highest good. The general principle of family law is becoming "whatever kind of family you want." Even the idea of parenthood is being deconstructed, with proposed new legal rules that break open the all-or-nothing idea that a child has but one father and one mother.
Maggie Gallagher is a nationally syndicated columnist, a leading voice in the new marriage movement and co-author of The Case for Marriage: Why Married People Are Happier, Healthier, and Better Off Financially.