Abuse in a system with State imposed terms vs. the system with voluntary agreements (pre-nups)

The proposition has used example based reasoning to show that a division of property based on a pre-nuptial agreement can be open to exploitation. We would argue that any form of property division specified at the beginning of the marriage and visible to both people at the beginning of the marriage and this includes state mandated property division system (divorce arranged by courts) no matter what form it takes, is also open to abuse. We bring two examples. 1. When a rich person marries a poor person the rich person takes on a certain risk. Under a no fault divorce system that many states operate, divorce requires an asset separation on a 50/50 basis. Given that the wealthy partner will lose 50% of his assets on divorce he has a much greater financial duress to remain in the relationship and put up with infidelity, neglect etc. This means that the poor person has an opportunity to abuse the rich person in marriage, an abuse, that the rich person could fight against with a pre-nup agreement. 2. Many states incorporate systems of alimony whereby in situations where a partner provides continuing financial support to another partner, that support must be continued for a term in the marriage [[http://www.rbs2.com/dfault.pdf]] . This term was put in place to protect housewives who have no financial income of their own, but changing conditions have made this term open to exploitation by other parties. For example, under Massachusetts law if a wife provided financial support to her husband to support him in an attempt to launch him into a career in a small business or in the arts, she would still be obliged to continue to provide that financial support beyond the termination of marriage under the term of alimony. Clearly, this provides disproportionate power to the husband, who will be receiving unjustified financial support from the wife after the end of marriage. These two examples show that state based divorce systems also contain the capacity for abuse. Virtually any form of freedom can be used to exploit weaker parties. The solution is to target protections that help those who are likely to be exploited. That’s why we have an ability to nullify contracts. That’s why certain terms, things that are objectively harmful in contracts are simply not allowed. Other matters are subjective and on those matters individuals themselves should be able to decide what it is they want. We want to prove that our system has a smaller opportunity for abuse and when the abuse occurs, it can be made less harmful. Pre-nups provide four benefits to couples, that State imposed terms of divorce cannot provide don't. 1. They provide flexibility. People can get legal advice and tailor contracts to receive the protection that they believe they will need in the marriage. People with different financial means, different preferences and different views of what is right can ensure that they will not be abused (both by their spouse and the state, both of them, who can have different ideas of wealth, equality etc.) within a marriage and that their marriage will correspond to their desire of what it should be. 2. Pre-nuptial agreements provide specificity. There can only be ONE State system for splitting assets. That system is a blanket ruling, it is limited in the scope and the type of conditions that it can impose on couples. If the conditions are too specific then the State runs the risk of dis-empowering certain forms of marriage. For example some people may want to include terms against infidelity in their pre-nup, but if the State was to force that condition on everybody then it would dis-empower forms of open marriage, where both partners have a more open view of sexuality. The point is that in prenuptial agreements these sort of subjective matters, where nobody can objectively decide on what is right, are left in individual hands. Then everybody can decide what is right for them. And there are so many things in life and love for which there are no objective criteria to judge on their rightness or wrongness! 3. When harm accrues to individuals through these sort of voluntary agreements, then it happens through their own decisions. Society can handle individuals making their own mistakes, but not states forcing them into situations where they suffer harms, because of the State's cookie-cutter system. People in general feel better if they feel that they are responsible for their own decisions and mistakes and thus they adopt better to harms. The State's role should be to provide opportunities for the minimization of the risk of such harms accruing, but not to take away the capacity of people to make their own decisions just because they could get hurt. But in addition to this we think that couples are far more likely to understand their own pre-nups than have a fine understanding of the divorce law that is imposed by the State. This is because they have to actively participate in the making of the pre-nup, therefore they are more likely to understand fully what they are getting themselves into. Couples don't take Law textbooks with them to bed. Law that is imposed on them by the ''far away'' abstract State is much more difficult to internalize. This argument has proven that any form of specified system for the division of property will always allow for certain conditions that affect parties in a marriage disproportionally, this always creates some opportunity. We've showed you that prenups provide a more tailored approach-- they thus reduce the risk of the person ending up unhappy. But even when harm accrues to individuals it is accrued through their own decisions and not through a blanket ruling by the State. We think that people have a right to make their own mistakes in the pursuit of happiness.