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My girlfriend and I live in Indiana. Someday, we would like to get married and have a baby. And God could surprise us with a baby anytime before marriage too. Ideally, I would like to split parenting responsibilities like my parents did. But she said that all her life she wanted to be a stay-at-home home school mom like her mom was. Maybe we could work out a compromise, but let us say that we couldn't agree about parenting.

My understanding is that most marriages end in divorce [0]. And legally, my future wife has the right to divorce me even if I did nothing wrong (no-fault). And then, according to the US Census Bureau [1], mothers usually get primary custody (unless she is on drugs or abusive, which she isn't). And according to the Indiana Parenting Guidelines [2], babies only get one night per week with the non-custodial parent. And even as a teenager, only alternating weekends.

Child support payments are based on custody, so I would need to pay her child support. And since she always planned on her husband financially supporting her, then I would need to pay her alimony too. And because of imputed income, I couldn't afford to take a lower-paying job with more flexibility.

I love and trust my girlfriend, but a cash incentive to divorce just doesn't seem to be in the best interests of our family [3]. And caring for my children only one night a week doesn't seem to be in their best interests either. The issue of who is the primary caregiver seems to be awfully important. They have the right to enforce visitation, and they get first call on where they go to church and school.

Is there any way out of this situation? How can I ensure, starting now before my children are born, that their primary caregiver is me? It seems that prenuptial agreements do not cover child custody and child support [4]. I would certainly try to get off of work to go to all of the doctors appointments and parent-teacher conferences. What about a parenting plan? Or moving to a different state? Am I only safe dating career women?

[0] https://en.wikipedia.org/wiki/Divorce_demography

[1] https://www.census.gov/prod/2013pubs/p60-246.pdf

[2] http://www.in.gov/judiciary/rules/parenting/

[3] http://scholarship.law.nd.edu/law_faculty_scholarship/485/

[4] http://family.findlaw.com/marriage/what-can-and-cannot-be-included-in-prenuptial-agreements.html

  • After reading [3] I'm considering asking a separate question. The answer seems obvious, but some quick searches don't turn up anything. Can you both waive your right to dissolve the marriage? If so, problem solved (well, custody anyway). Alternatively, you could say something about agreement to open a day camp upon divorce if your wife sends any and all children to it according to some schedule and for some daily rate per child. Maybe the hours are Sunday 8:00 am through Wednesday 8:00 pm and the daily rate is equal to twice what you end up paying your wife in child support + alimony each day. – Patrick87 Jun 24 '16 at 21:01
  • @Patrick87 Waiving the right to divorce or a pre-marriage contract for post-divorce daycare –– I think both of those ideas are a long shot, but they are very creative! Does anyone know if these are possible? – Dan Salvay Jun 25 '16 at 0:31
  • As a reformulation of my question, going into marriage and parenting, and leaving everything on the table, what is the best way to retain the most parental rights that I can? I assume that if someone was completely un-involved with their children, then they give up the right to swoop in someday and get custody. So would being a super-involved parent do the reverse? Can I imitate whatever women are doing to get custody even if I can't literally be a woman? – Dan Salvay Jun 25 '16 at 0:41
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    I'll be absolutely astounded if there's any US state where one can waive the right to divorce. States allow divorce because there is a public interest in allowing estranged couples to stop being married. So a waiver would seem to be clearly not in the public interest. Can you really imagine a court enforcing such an agreement and ordering the spouses to stay married? – Nate Eldredge Jun 25 '16 at 1:28
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    @Patrick87: No, I do not think so. I still think a court would consider it as against public policy. (And one should ask, if this is enforceable, then why not "No divorce except for cause as determined by the laws of the Kingdom of Saudi Arabia"?) – Nate Eldredge Jun 25 '16 at 14:33
4

You seem to have put a lot of thought into this - which is good. However, the short answer is: There is no legal solution.


To address your points:

And legally, my future wife has the right to divorce me even if I did nothing wrong (no-fault).

Yes (at least in most jurisdictions).

And then, according to the US Census Bureau [1], mothers usually get primary custody (unless she is on drugs or abusive, which she isn't). And according to the Indiana Parenting Guidelines [2], babies only get one night per week with the non-custodial parent. And even as a teenager, only alternating weekends.

Here, it depends. What you describe is indeed what happens often, but not always. Rules vary a lot, and change, but there is an increasing trend to have joint custody in case of a divorce. The details vary, but joint custody can extend to joint physical custody or shared parenting, where both parents take turns looking after the child. This is possible in the United States. In practice, in case of separation the parents will have to work out a parenting plan - ideally together, or in court if needs be.

What the result is will depend on circumstances, and on the opinion of the court what is in the children's best interest. This may or may not mean joint physical custody.

Child support payments are based on custody, so I would need to pay her child support. And since she always planned on her husband financially supporting her, then I would need to pay her alimony too. And because of imputed income, I couldn't afford to take a lower-paying job with more flexibility.

Again, this depends. For example, with joint physical custody, there may be only small or no child support payments if both parents care for the children about equal time. And even if child support is due, there may be no alimony payments if the mother can work (even if she chooses not to). Again, a lot depends on the specific case and jurisdiction.

Also, while it is not possible to reduce child support in a pre-nup (because theses payments belong to the child), you can (to some extent) limit alimony payments in a pre-nup.


Is there any way out of this situation? How can I ensure, starting now before my children are born, that their primary caregiver is me?

Here we are leaving legal territory. The short answer is: There is no way to ensure this, certainly not using legal means.

The only good approach is to get to know your partner first, and make sure you have similar views on how to approach parenting. If she wants to be a stay-at-home mom, and you want to share both work and parenting (such as in a shared earning/shared parenting marriage) then you need to think (and speak) about how to reconcile these views.

You may find that you are just not compatible on that point. Then take appropriate consequences. To put it plainly: In my opinion, if you do not trust your partner to respect your wishes on parenting together, she is probably not the right person for you to have children with.

2

There is no good approach, and there are no assured solutions. But I can share an example, which might be of some consideration.

A&B contemplated getting married. They were both grad students in computer science, and both had worked for firms in an internship capacity, and it was likely that they would both be hired in the city they were living in. They drafted a pre-nup, which even covered situations like medical incapacitation and disability.

They got married, they had a child and B decided that she wanted to be a full time mother. That might have worked, except that A had just built the house they lived in, spending every evening, every weekend, and had substantial sweat equity. B's contribution was 1/2 of a small mortgage payment.

B had a friend going through a contentious divorce, and in consoling her friend, talked with her friend's attorney about her dilemma. No problem. The attorney laid out a plan whereby she would 10 hours a week at her job, which her employer agreed to, and she would rent an apartment. Her proposal was for generous visitation for A, essentially, Friday morning through Tuesday morning. However, with her reduced hours, A had more income and therefore was responsible for the bulk of the child rearing costs.

A thought it was a good idea, then he realized that he would not have any free weekends, and that B would have every weekend free to socialize, and look for a replacing mate, perhaps one with more finances.

A went to court without an attorney, and argued that the pre-nup provided for the terms of their divorce, and the court agreed. In custody court, he argued that the pre-nup agreed that they would both have SHARED parenting, on a 50/50 basis, and that he was prepared to do so. In order to free his schedule, he took a job with time flexibility and about 30 hours a week. He argued that if the parenting was shared, then the support should be shared: 50/50. The court agreed (New York). Support court followed this, and ruled that B would have to contribute equal to A.

A parenting plan detailed the hours, handoffs, finances, etc. B married a surgeon, and divorced 3 years later. Oddly enough, she remarried A before their child was 5. But while they were not married, the child spent 50/50 time with each parent, and they equally split the costs of raising the child.

Your mileage may vary, and states will vary, but the initial objective of A and B is similar enough to your situation so that I felt I should share it.

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    Thanks for sharing this story. Since this is law.SE, could you add the jurisdiction where this happened? – sleske Nov 14 '17 at 9:55
  • Also, the first part is a bit confusing: ". That might have worked, except that.." - I don't quite see where the problem was. Also, did A&B separate at that point? The text seems to imply it, but it's not stated. And did they actually divorce? – sleske Nov 14 '17 at 9:57
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    A&B did get divorced. In New York, upstate, not in NYC. – mongo Nov 14 '17 at 13:45
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    B decided that being a full time mother was more important to her than having a husband, and rather steadfastly insisted that there would be no compromise, she would be a full-time mother. A did not see how they were going to balance the books with that strategy. At some point B simply decided that if A wasn't supportive of her dreams, she wanted a different person as a life partner. She later changed her opinion. – mongo Nov 15 '17 at 23:00
  • Thanks for the clarification, that makes sense. I'll probably edit it into the question if you don't mind. It's interesting to see a story to illustrate the legal concepts - and glad they had a (hopefully) happy ending. – sleske Nov 15 '17 at 23:26

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