Contracts of Love & Money: What a Divorce Lawyer Knows About Relationships
Summary
James Sexton, a family law attorney with 25 years of experience handling divorces and prenuptial agreements, argues that the legal and emotional frameworks around relationships are not opposites but complements. He makes the counterintuitive case that prenuptial agreements — far from being unromantic — deepen trust, encourage honest communication, and are strongly correlated with lasting marriages. The conversation explores love, infidelity, custody dynamics, and why most people avoid necessary conversations until it’s too late.
Key Takeaways
- Everyone already has a prenup — it was either written by your state legislature or co-authored by you and your partner. The only question is who writes the rules.
- People who get prenups are far less likely to divorce — in Sexton’s experience of drafting hundreds to thousands of prenups over 25 years, only about five clients later came to him for divorce.
- The ability to discuss a prenup predicts marital success — couples who can have hard, honest conversations before marriage are the same couples who tend to stay married.
- The current divorce rate is approximately 56%, and that figure likely undercounts unhappy couples who stay together for children, finances, or religious reasons.
- Infidelity appears in 90%+ of divorces in some form, but is rarely the root cause — it is typically a symptom of deeper unmet needs and emotional disconnection.
- The most dangerous lies are the ones we tell ourselves — all marriage problems, in Sexton’s view, stem from not knowing what we want and not knowing how to express it.
- Feeling safe is a prerequisite for feeling loved — emotional and physical safety must come before genuine intimacy.
- Every marriage ends — either in death or divorce. Acknowledging this impermanence, like knowing a sunset is finite, can make the relationship more meaningful, not less.
- Prenuptial conversations are an invitation to intimacy, not a signal of distrust — they prompt partners to articulate what they value, what they need, and what they owe each other.
Detailed Notes
The Marriage Contract You Didn’t Write
Sexton’s central reframe: marriage is already a legal contract the moment it occurs. If a couple does not write their own prenup, the state legislature has written one for them — and that government-written contract can be changed without the couple’s knowledge or consent.
- The state’s default rules govern asset division, custody, and financial obligations upon divorce
- These rules may not reflect the couple’s actual values or circumstances
- A prenuptial agreement simply means the couple chooses to author their own rule set — ideally during a period of optimism and mutual goodwill
“You have a prenup. It was either written by the government or written by the two people who allegedly love each other more than the other 8 billion options in the world.”
Why Prenups Correlate With Lasting Marriages
Sexton reports that in 25 years of family law practice, drafting hundreds to potentially over 1,000 prenups, only approximately five of those clients later divorced.
- This is likely a self-selection effect: couples willing and able to have the difficult conversations required for a prenup are demonstrating exactly the communication skills that sustain long marriages
- The process forces partners to discuss fears, hopes, expectations, financial values, and sexual needs before conflict arises
- Learning “how to fight before you’re in a fight” creates a relational framework that reduces damage when disagreements occur
- Prenups democratize access to safety — not just for the wealthy, but especially for couples living paycheck to paycheck, for whom divorce can be financially catastrophic
The Economy of Marriage
Sexton frames marriage as both a legal contract and an economic relationship — an exchange of value between two people.
- An economy requires different parties bringing different things to the table (not the same thing exchanged for itself)
- Partners should be able to articulate: What do I bring to your life? What value do you provide to mine?
- This is not unromantic — it is the same logic behind great partnerships (e.g., Jobs and Wozniak), where complementary strengths create something neither could build alone
- The marriage economy includes financial contributions, emotional labor, childcare, sexual connection, companionship, and co-parenting
Infidelity: Symptom, Not Cause
Sexton, who considers himself to have a “PhD in infidelity” from decades of case work, distinguishes between infidelity as a presenting reason for divorce versus its underlying causes.
- Infidelity appears in 90%+ of divorces in some form, but is typically not the root cause
- The real causal chain is usually: emotional disconnection → withdrawal → unmet needs → infidelity
- Affairs are often described by those who have them as making them feel “alive” — echoing Esther Perel’s research — not primarily about sex but about being seen, admired, and desired
- Gender asymmetry in perception: when men cheat, cultural narratives often frame them as predatory or irresponsible; when women cheat, the same narratives tend to frame them as seeking self-discovery or escaping an unmet need
Gender Differences in Divorce
Based on direct observation across thousands of cases:
Custody:
- The maternal presumption (legal default giving mothers custody) was formally eliminated in the 1980s, but social stigma around mothers without primary custody persists
- Women fight harder in custody litigation, in large part because losing custody carries a social identity cost that men are not held to equally
Emotional patterns:
- Men tend to express emotional pain through anger — a culturally permitted male emotion
- Women, in Sexton’s observation, tend to be more tolerant of unhappy marriages for longer — but once they decide to leave, the shift can be total and decisive
Infidelity framing:
- Cultural narratives systematically frame male and female infidelity differently, affecting how divorcing parties see themselves and are seen by others
Prerequisites for Love: Safety and Honesty
Sexton argues that two foundational conditions must be met for a healthy romantic relationship:
- Emotional safety — the ability to be your true self, discuss hard things, and know that conflict will not become catastrophic
- Honest self-knowledge — knowing what you actually want and being able to articulate it
“The most dangerous lies are the lies we tell ourselves.”
He identifies two root causes underlying nearly all marriage problems:
- Not knowing what we want
- Not knowing how to express what we want, even when we do know
The Impermanence of Love as a Feature, Not a Bug
Sexton offers a philosophical reframe of marriage’s fragility:
- All marriages end — in death or in divorce
- Acknowledging this is not pessimistic but clarifying: every day a partner chooses to stay is an active, meaningful choice, not a passive default
- The fact that love is “loaned, not permanently gifted” makes it more beautiful, not less — analogous to how a finite number of sunsets makes each one more worth noticing
- The goal should not be to avoid divorce out of fear of loss, but to build something worth staying for
Practical Notes on Prenuptial Agreements
- Each partner should have their own attorney — a lawyer cannot legally represent both parties due to potentially adverse interests
- A prenup is not filed publicly — it is kept privately by both parties and their lawyers
- Properly drafted prenups are very difficult to successfully challenge in court
- A new platform, trustedprenup.com, is being developed to democratize prenup access, reducing cost from 15,000 to approximately 700
- Prenups can include agreements about finances, asset division, custody frameworks, and in some cases sexual expectations or relationship norms
- “Nesting” is an emerging post-divorce custody arrangement where children remain in one home and parents rotate in and out, rather than children moving between households