Prenuptial Agreements: Till Death Do Us Part?

They were not designed to protect the property of the wealthier spouse but to assure the maintenance of the spouse with less earning ability upon (typically) a husband’s death.

People across cultures have been making prenuptial agreements for thousands of years.

• Soon after the Prophet Mohammad’s death his great-granddaughter, Sukayna, who was married several times, at least once, stipulated in writing that her husband was forbidden to disagree with her about anything.
• The Hebrew marriage contract, called the ketubah, is at least 2,000 years old. This contract was intended to protect women in case of divorce or widowhood by setting out the husband’s financial obligation to the wife. This agreement also made it expensive for a husband to divorce his wife and so made marriages more stable.
• Dowries, often considered to be early prenuptial agreements, were mentioned in seventh-century writings as a necessity.
• By the ninth century, in Europe, husbands were required to secure one-third of their property to their wives on their death as dower rights (the share of a deceased husband’s real estate to which his widow was entitled after his death). Wives sometimes brought dowries of money or land to the marriage. These arrangements were covered in an agreement drawn up before the marriage.
• In fifteenth-century England, Edward IV reportedly had a prenuptial agreement with Eleanor Butler sometime between 1461 and 1464.
• Up until the nineteenth century in the United States, married women could not own property and all of a wife’s property was transferred to her husband on marriage. This began to change when New York State passed the Married Women’s Property Act of 1848. Before then, women needed marriage contracts to guarantee them property in case of divorce or the husband’s death.

Historically, before the advent of modern “romance,” parents of the bride and groom negotiated a financial agreement on the new couple’s behalf as marriage was often exclusively used as a means of distributing wealth and inheritance, making marriage choice more about the exchange of economic capital and less about romantic love.

For Love, or for Money?

By the turn of this century, prenuptial agreements continued to be viewed—both in the lay literature and the legal literature—not as a vehicle for mutual protection but as a vehicle to protect the rights and assets of the wealthier spouse. As a consequence of the inequity in power and wealth between the contracting parties, these one-sided prenuptial agreements were therefore viewed as antithetical to romantic commitment.

At the turn of this century, attorney and mediator Sam Margulies, a prolific author about prenuptial agreements, promoted this view in an interview in the popular Psychology Today. The interviewer paraphrased Margulies’ views as “current divorce laws mandate a fair and equitable distribution of assets, making the prenup the stuff of power plays—and tangible proof that a couple is not ready to tie the knot.” Carlin Flora, Let’s Make a Deal: Does a Prenuptial Agreement Sow the Seeds of Divorce or Provide a Crash Course in Conflict Resolution? Two Attorneys Duke It Out, Psychol. Today (Nov. 1, 2004). Margulies wrote the previous year that the prenuptial agreement is “almost invariably . . . sought by the economically stronger party in order to render himself financially invulnerable in the event of a divorce. . . .” Sam Margulies, The Psychology of Prenuptial Agreements, 31 J. of Psychiatry & L. 415 (2003).

Commenting on the underlying psychology (i.e., motivation) for seeking a prenuptial agreement, Margulies wrote, “Such motivation usually masks underlying troubles in the relationship involving issues of power, trust and sharing. Most emotionally legitimate issues are provided for by existing divorce law, and the desire to be invulnerable notwithstanding prevailing law suggests problems potentially fatal to the marriage.” Id.

The Other Side of the Argument: Prenups Bode Well for Marital Satisfaction

In contrast to the forgoing individual opinion is research reported in a 2017 issue of the Journal of Divorce & Remarriage examining marital satisfaction, marital adjustment, and consideration of divorce among over two thousand Orthodox Jewish men and women in North America. These marital outcomes were compared for individuals who signed or who did not sign a religious prenuptial agreement.

The Jewish prenuptial agreement has been developed in recent times with the stated intent of keeping the Jewish woman from becoming an agunah (a married woman who is not living with her husband but has not been released from the bonds of matrimony) in cases where the husband refuses to grant her a get (Jewish divorce document).

Without such an agreement, Jewish marriages cannot be dissolved without the consent and cooperation of both spouses. This new type of prenuptial agreement makes provisions for the possibility of divorce. By setting up rules prior to the marriage in the form of a contract, both spouses have an interest to negotiate a divorce in a dignified manner, and get-refusal is avoided.

The research indicated a higher level of marital satisfaction among those who signed the religious prenuptial agreement and no significant difference in marital adjustment or tendency to consider divorce between groups of individuals who signed or did not sign the religious prenuptial agreement.

Who Is Signing Prenups Today?

Traditionally a tool for the rich and famous, widowed people remarrying late in life, or the increasing number of divorcing baby boomers (i.e., “gray divorces” whose national divorce rate has roughly doubled since 1990), prenuptial agreements are increasingly being viewed as a positive and are increasingly being considered by couples embarking on marriage for the first time. Notably, the age at which couples marry is on the rise; between 2008 and 2016, the median age at first marriage rose approximately two full years to 30 for men and 28 for women.

In a 2010 poll conducted by Harris Interactive (now Harris Poll) appearing in USA Today, only 3 percent of U.S. adult respondents who were married or engaged reported having signed a prenuptial agreement. A decade later, a Harris Interactive poll conducted for The New Yorker showed that number had jumped to 15 percent. See Harris Poll, “More Couples Are Signing Prenups Before Saying ‘I Do’” (July 12, 2022).

While couples who have signed a prenuptial agreement are still in the minority, the perception that prenups are only for the wealthy is changing. According to the same 2022 Harris poll, four in 10 U.S. adults (42 percent) support the use of prenups, and 35 percent of those who are in an unmarried relationship state that they’re likely to sign a prenuptial agreement in the future. Further, 44 percent of married or engaged respondents between the ages of 18 and 34 (Gen Z’s of marrying age and younger millennials) have signed prenups, while just 13 percent of those between 45 and 54 have done so. And, surprisingly, for those 55 and above, the figure is below 5 percent. Note that the millennial divorce rate is lower than those of their predecessors. Millennials (ages 26–41, born between 1981 and 1996) are showing lower rates of divorce than older age groups. This may be because this demographic typically chooses to marry at a later age, and many forego marriage in favor of cohabitation. The generational gap in marriage and divorce rates may also be due to the fact many millennials complete further education and begin their careers before tying the knot. It’s a single poll, of course, but its findings suggest that more Americans, particularly younger Americans, are getting prenups. And one likely impetus for this change, according to those experts, is the historic levels of debt that many younger Americans have.

For the most part, prospective spouses have and may continue to enter into prenuptial agreements because they wish, in the event of divorce, to divide their property in a manner different from that prescribed by the state standard property apportionment rules; but there are other reasons. The following are four contemporary prenuptial “stories”:

Younger millennials Alison and Michael, bright and accustomed to being self-reliant, married just as the world was closing down for COVID. Alison is an only child and was raised by doting parents and grandparents. Her parents have been married for thirty-five years, and her grandparents on both sides were married for respectively fifty years and close to seventy years. In contrast Michael’s parents divorced in an acrimonious manner just prior to his marriage.

Both are college- and post-graduate educated and share a common passion for “making the world a better place.” Both spouses, despite differing backgrounds, identify themselves as “modern Orthodox” Jews (a movement within Orthodox Judaism that attempts to synthesize Jewish values and the observance of Jewish law with the secular, modern world).

Early in their courtship they sought input from peers and family members as to what does, and doesn’t, make for a lasting marriage and then met with their rabbi, a psychologist, and a family lawyer friend of the family over a period of a few months in order to craft their own prenuptial agreement which became their unique and personal ketubah.

Millennials John and Susan are the exemplars of “opposites attract.” John is a first-generation American, raised in a large midwestern city by his immigrant parents. He is the beneficiary of private schooling and a graduate of a prestigious business school. Having achieved success in the world of finance, he left to form his own successful capital investment fund.

Sue is also from the Midwest but a very rural area. She is the first in her family to have graduated college and to leave her small town to relocate to the eastern city where she met John.

Sue followed John when he relocated during COVID, each acknowledging that they were on their way to the altar.

Problematic for both is that as skilled at finances as John is, Sue has no interest (or skill) in keeping her checkbook balanced and entered the relationship in debt.

The couple began their prenuptial negotiations with skilled lawyers who have proven to be more advocates than counselors. Now, postnuptial, and with a baby on the way, the couple are continuing their negotiations, this time working within the collaborative law process.

GenXers/Boomers Stan and Ruth are fighting over a legacy prenup. The spouses were married in college, raised children who are now on their own, and became grandparents. They were early adopters of the prenuptial agreement.

As a condition of his entering into the business thirty years ago, Stan’s father insisted that Stan have a prenuptial agreement if he wished to one day inherit the business. Stan (and Ruth) did sign an agreement, and Stan is now in charge of the family business.

As a consequence of Stan’s roving eye, he is engaged in multiple lawsuits: a claim of sexual harassment by a former employee who alleges she had a long-standing relationship with Stan and, as a consequence, a very nasty, very litigated gray divorce—at the center of which, of course, is a challenge to their prenuptial agreement.

Boomers Carl and Robert are a gay couple who married during COVID. Carl and Robert escaped to the Carolinas during COVID where they were married (over Zoom). As a professional gay couple with no children or other dependents their prenuptial agreement was focused more on assuring health care for each other should they divorce. They relied on professional colleagues to assist in the drafting and refining of a prenuptial agreement they had worked out during their time alone.

What Can Lawyers Learn?

Criticism of prenuptial agreements as being exemplars of distrust, the first step to ruining romance, or a reflection of gender politics aside, there are many psychologically healthy and practical reasons for prenuptial agreements. The first and foremost among them is that, for reasonable and responsible partners-to-be, a discussion and negotiation about terms of a prenuptial agreement can strengthen a relationship by allowing the couple to enter marriage on a footing of open and honest communication. Asking one’s intended to engage in a frank discussion about their future can be an opportunity for the partners to express their thoughts and feelings about a wide variety of issues that make up a marriage.

As well, having a premarital contract—if created cooperatively—may encourage marriage and provide a buttress to a stable union. “[W]ith the proper legal safeguards and sufficient trust between spouses, [prenuptial contracts] can be useful, even relationship enhancing, documents.” Gant v. Gant, 329 S.E.2d 106, 112–13 (W. Va. 1985), recognizing that prenuptial agreements most likely “encourage rather than discourage marriage.”

However, from this psychologist’s perspective, any negotiations that start out as adversarial, or rely on an imbalance of power to be successful (as witness John and Susan’s “story”), are likely to fit the commonly held negative stereotype about prenuptial agreements.

On the other hand, negotiated and entered into as a mutually cooperative undertaking, the prenup does not have to be experienced as an unromantic gesture; rather it can enhance a couple’s relationship in significant ways. Done with mutual good, it will inspire honest conversations about money, ambition, and plans for the future.

While aggressive advocacy may be viewed as beneficial in a divorce negotiation, a prenup negotiation requires a lighter touch. That “lighter touch” is changing the perception of prenups, particularly by clients strongly disinclined to go to court for financial, emotional, or confidentiality reasons or because of their children. Collaborative law has increasingly become their choice.

More and more matrimonial lawyers are taking note of the growing opportunities in collaborative law to expand their client base, provide client satisfaction, and give themselves more control over their caseload.

Bob Dylan may have been right, “The times they are a-changin’.”