THE BLOG
06/03/2013 11:30 am ET Updated Aug 03, 2013

Everything Is a Matter of Perspective

I have long been fascinated by the way in which people think and rationalize things. This is especially true when people make a circular argument, also known as an argument from ignorance. In such cases, "there is no logical connection between the evidence itself and the conclusion. The only logical conclusion between premise and conclusion is the restatement from presupposition to conclusion." Such "arguments" are made by people all the time, when it comes to matters involving family law.

For example, people often fail to enter into pre-marital agreements because they underestimate the "value of prenuptial agreements, especially due to false optimism that marriages will last; and a belief that discussing prenuptial agreements would signal uncertainty about marriage." However, as Harvey A. Silberman, family law judge for the Superior Court of Los Angeles County in California likes to remind people, "getting married in and of itself creates a pre-marital agreement -- the Family Code." Thus, as with all circular arguments, people manage to reach a "conclusion," without ever having addressed the question. In this case, the question is as follows: What are the terms of your pre-marital agreement? They can either be the terms set forth in the Family Code or terms that you specifically negotiated as part of the pre-marital agreement.

As Steve Mindel says, "more marriages fall apart for financial reasons than for fidelity reasons. Fundamentally, marriages are built on trust and anytime you breach the trust of the other party, it damages the relationship. Getting married is like the merging of two enterprises." According to a recent survey, "nearly half of divorced or separated U.S. adults said they regret not discussing their personal finances before taking their vows." Interestingly enough, such things are discussed when people enter into pre-marital agreements.

I happen to agree with both Judge Silberman and Mr. Mindel. In fact, the comparison between a marriage and a business merger is very appropriate. Did you know that if people enter into a business partnership and fail to enter into a business partnership agreement, the terms of their partnership will be in accordance with the Uniform Partnership Act or sometime of the like? Furthermore, some people may be subjected to that Act, even though they do not consider themselves to be in a business partnership. After all, "if it looks like a duck, quacks like a duck and walks like a duck, it's a duck."

When people are divorcing, they often make comments such as the following: My spouse did not contribute equally financially to our marriage, therefore, why are they entitled to any of the savings and assets that I accumulated during our marriage? If I divorce my spouse, I will have to pay them spousal and/or child support.

If your spouse is legally entitled to savings and assets accumulated by your during the marriage, it is because those were the terms of your pre-marital agreement. The fact that you did not have a formal pre-marital agreement does not somehow eliminate the fact that you implicitly entered into such an agreement by virtue of getting married. In other words, the savings and assets that your spouse receives in the divorce already belonged to your spouse as part of the pre-marital agreement. You are giving your spouse something that already belongs to them.

In the event that you will end up paying spousal or child support to your spouse in the divorce generally means that you were already paying them such support during the course of your marriage. Weren't you in essence "subsidizing" your spouse during the course of the marriage? Other than putting a name to it, isn't it essentially the same. If you don't divorce, does that mean that you are no longer "subsidizing" your spouse?

Everything is a matter of perspective.

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