“Debra” and her fiancé were on the same page—they wanted a prenuptial agreement, a legal contract in which a couple agrees to what will happen to their assets in case of divorce.
She was in her early 30s and this was her first marriage but his second. “It was a mess,” she says of her fiancé’s divorce from the mother of his four children.
The North Bay resident who prefers to use a pseudonym found the process of drafting a prenup illuminating.
“It definitely opened up conversations that we might not have otherwise have,” she says. “I got a better perspective on how people think about money, observing how they interact around these topics, things they get agitated about, things they get passionate about. I think you learn a lot.”
During the course of their nine-year marriage and the birth of their child, their financial roles flip-flopped, and she eventually became the breadwinner.
“I understand why my attorney fought so hard to make sure that I was entitled to alimony in the prenup because [my fiancé] wanted me to waive it. It is interesting how when your situation changes, you have a different perspective on it,” she says.
When she decided she wanted a divorce, she ended up being the one offering a buyout.
Debra is one of the many people in the North Bay and across the country who are saying yes to the dress—but not without a prenup. The percentage of American couples with prenups has grown from 3% in 2010 to 15% in 2022, and most are young, between the ages of 18 and 34, according to the Harris Poll—not baby boomers in their second or third marriages. And increasingly, women are demanding them, according to the American Academy of Matrimonial Lawyers (AAML).
Despite the increased interest in prenups, there’s still a stigma about them. They get a bad rap on reality TV shows like the various incarnations of The Real Housewives and are used as humor in sitcoms like Seinfeld, in which Kramer suggests that a unhappily engaged George demand that Susan, his fiancé, sign a prenup.
Prenups are not seen as “romantic.” For many people, getting one seems to be planning for an inevitable divorce instead of, as Debra discovered, a way to talk openly and honestly about all things financial. For some, it’s something only the wealthy need or want. For others, it brings to mind an old wealthy man trying to protect his assets from a much younger, likely less financially secure, woman.
Louisiana State University law professor Elizabeth R. Carter rejects that stereotype, believing it perpetuates the idea that women who agree to a prenup are not only uneducated and economically needy, but also want “the state to protect them from the overreaching of their husbands and their own stupidity.” That reinforces negative stereotypes about women, she says, while also eroding “their personal autonomy by limiting their ability to make their own decisions about the meaning of marriage.”
Plus, that stereotype ignores who and why Americans are tying the knot nowadays.
While it’s true that many wealthy people opt for prenups—Beyoncé, Catherine Zeta-Jones, Kim Kardashian and other celebrities have talked about their prenups and suggest all women get one before putting a ring on it—and some may indeed involve an old wealthy man and a much younger woman, many “ordinary people are interested in the tidiness and the finality that they perceive they might have if they have a prenuptial agreement,” AAML president Cary Mogerman told the New Yorker in 2022.
People are accumulating wealth earlier than in generations past, including women, who are a larger part of the college-educated labor force than men and, in certain cities, are earning as much or more than their male peers, according to the Pew Research Center. People are also getting married later — in 2022, U.S. Census Bureau data showed the median age was approximately 30.5 years old for men and 28.6 years old for women, allowing them more time to gather wealth—and often debt. Prenups address that, too, as well as future earnings and assets.
Not surprisingly, the Bay Area, which has the largest number of high-earners employed in tech in the U.S, making on average of $157,000 a year, is also in on the prenup trend.
“We are seeing an enormous uptick in the demand for prenups and the age of the typical prenup client is also coming down,” observes Debra Schoenberg, a longtime San Francisco-based divorce attorney and founder of Schoenberg Family Law Group. “There are a lot of people in their late 20s, early mid-30s, who were in the right place at the right time in one of these startups, or one of these tech companies or an early investor or early employee. At a relatively young age, they have a substantial amount of wealth, and they have no interest in risking that wealth.”
What many couples may not realize is that the state already has a sort of prenup for them as it decides who gets what. Drafting their own is a way to for couples to take control of their financial life rather than relying on the state-imposed formula, which may not have their best interests in mind. Many couples spend more time planning for their wedding day than the marriage—a legal, financial contract—itself.
As do-it-yourself law company Nolo co-founder Jake Warner and Toni Ihara write, “When you enter into the contract by saying ‘I do,’ you are subscribing to a whole system of rights, obligations and responsibilities. Unlike most other contracts, however, you never get the chance to read the terms or the fine print provisions because the provisions are unwritten and the penalties for breach unspecified. In no other area are contracting parties so in the dark.”
Still, many argue against prenups, including some respected experts.
In a recent column in the Atlantic, Harvard professor and best-selling author Arthur C. Brooks advises would-be spouses to take a risk on love and forgo a prenup.
“A prenup might sound like simple prudence, but it is worth considering the asymmetric economic power dynamic that it can wire into the marriage,” he writes. “Some scholars have argued that this bodes ill for the partnership’s success, much as asymmetric economic power between two companies makes a merger difficult.”
Schoenberg found that shocking.
“I am an enormous proponent of prenups. I have been a divorce lawyer since 1985, so this is my 38th year, I’ve handled somewhere in the neighborhood of 15,000, 17,000 divorces,” she says. “When I think about the amount of money that people have spent over the course of my career to argue about the distribution of their assets and debts when they could have created this roadmap prior to the date of marriage, presumably when they hold each other in the highest level of esteem, love each other deeply and hope to spend the rest of their lives together, as opposed to on the backend of the marriage, when there’s hurt and anger and grief and sometimes even worse feelings than that, it is without question the most logical thing to do.”
Debra was thankful to have that roadmap. Finalizing a divorce can often take more than a year if not years, but she and her former husband were able to sign their divorce papers in three months.
“It was definitely helpful. It just made things very, very clear cut, for instance the date of separation,” something that a couple often disagrees about, she says. “Divorces are never easy, but it did establish certain things. It paved the way to make the process a little cleaner and easier.”
Prenups don’t cost much—they average around $975 in California, where they are more formally called a premarital agreement, a lot less than the price tag to dissolve a marriage in the state. At an average of $10,159, California’s the most expensive state in the U.S. to get a divorce.
Schoenberg could have predicted the rise in divorces in the wake of the pandemic. After being locked up 24/7 for so long, many married couples decided to call it quits. What she didn’t see coming was the substantial rise in the demand for prenups. “People were coming here in droves saying, ‘I could die from this and therefore I’m no longer ambivalent about whether I want to make a lifelong commitment to this other person. I want to get married now and I want a prenup to go with it.”
Prenups the old-fashioned way
Prenups are hardly a new idea. The Hebrew marriage contract known as the ketubah, a legal document that not only legitimizes the marriage but also details the groom’s financial obligations to his wife in case of divorce or widowhood, dates back 2,000 years or more. In France, the prenup agreement derived from a woman’s dowry and was first recorded in the ninth century, according to Seymour J. Reisman, a divorce lawyer in New York.
In the early Middle Ages, marriages were nothing more than a private contract between two families that addressed property exchange and that also provided the wife some financial protection in case her husband died, divorced or deserted her.
Prenups were originally a way to protect wives in the days when women were typically not allowed to have money or property of their own. The handful of wealthy heiresses in colonial America required their would-be husbands to sign prenups as a way to suss out male gold diggers, who, due to coverture laws that gave husbands total control over their wife’s wealth, had an incentive to marry for money, as University of South Carolina School of Law professor Marcia A. Zug writes in her just-published book, “You’ll Do: A History of Marrying for Reasons Other Than Love.” She also notes that women who immigrated to America during colonial days to become the first “mail-order brides”—most of the early colonists were men—were able to convince their would-be husbands to sign prenups that often allowed them to keep their dowries and afforded them “significant monetary benefits, power and independence.”
But prenups only began gaining popularity as a way to address the repercussions of divorce—which was harder to get before no-fault divorce was first legalized in 1969 by California Gov. Ronald Reagan—and not just death of a spouse, after World War II. Still, for many years courts didn’t always honor them. The Uniform Premarital Agreement Act was drafted in 1983 and updated in 2012 as a way to ensure more uniformity among state laws that a prenup entered into in one state would be honored by the courts of another state. Still, only 28 states—California is one of them—and the District of Columbia have adopted some version of it.
This may matter if a couple signs a prenup in one state and weds in another, like “Kara.”
Community property and prenups
When Kara reconnected and fell in love with a man two decades after they and their former spouses were neighbors, Kara, who prefers to use a pseudonym, knew there was no way she was going to get married again without a prenup. Not only did she have more assets than he did, but he also had a substantial amount of debt after a messy divorce, a health crisis and tax bills after the demise of a business partnership. Kara, who had a brief marriage in her youth and then a 27-year marriage in which she had three children, updated her trust at the same time they drafted a prenup in California before tying the knot 14 months later in Louisiana after their reconnection.
“I knew I was taking some risk, getting married when we were in the super honeymoon phase of the relationship,” says Kara, in her 60s, who splits her time between Marin County and New Orleans. “That felt pretty quick being that I hadn’t seen him in 25 years. I felt like I needed to protect myself just in case my instincts were wrong.”
Mostly, she wanted him to pay off his debt in a way that he may not have chosen himself. Although his prior debt in a community property state like California wouldn’t automatically become a joint debt, there are some exceptions, such as when a spouse becomes a joint account holder after marrying.
“I was asking him to really step up and deal with his financial trouble. I pretty much asked him to wipe out his savings accounts to get out of debt and really pushed him to get to zero on debt and helped him where I could. It did feel really bad,” she says.
Seven years into their marriage, Kara says she doesn’t feel the need for a prenup anymore. “If something happened, I think he would be entitled to his share of whatever we’ve built together. It’s taken me time mentally to adjust to being the one with more assets. But now that I have and I see what he has to done for all our family and for me and his constant service to others, now the financial things mean less to me.”
“Rachel”—also a pseudonym—didn’t see a need for a prenup when she was about to say “I do” for the second time.
Her first marriage lasted five years—“We had a troubled marriage almost from the start”—and although she had started a successful business during those years, the Marin County resident had no problem sharing the wealth.
California is a community property state, and she believes in the concept.
“I felt he deserved his share,” she says.
Even though that divorce was expensive, and Rachel earned more than her second husband-to-be, he was the one who insisted on a prenup. He did, however, waive any right to spousal support.
“He wanted no part of my money,” she says. “It was nice at the time of the prenup, but it was not nice 11 years later,” which is when the marriage fell apart—he had become an alcoholic. After two years of mediation, “he then felt entitled,” she says.
When she accidently used a joint account to pay a mortgage payment instead of her personal account, it created community property interest in their home, and Rachel had to either maintain his household at her level of living for the rest of his life or buy him out. She paid him a lump sum.
While prenups are “presumptively valid” in the courts, a new ruling in Orange County this past August—Last vs. Superior Court—may complicate things, Schoenberg says. The ruling states that unless the trial court finds in writing or on the record that prenup meets certain family code requirements, it could be presumed to have not been executed voluntarily, and thus be unenforceable.
“There’s kind of this one extra step,” she says, “but to be honest with you, if attorneys are doing their job right, it shouldn’t be hard to jump through that kind of new hoop.”
Extra step or not, Debra’s a big fan of prenups and wouldn’t consider marrying again without one. She also advocates for them for all her female clients.
Still, although she believes she was as prepared as a 30-something could be, she acknowledges that, like many spouses-to-be, she was a bit naïve and too focused on the romantic aspect of marrying.
“I think I would have probably advocated more for myself in areas that he was drawing a hard line on. I wish I had been a little more informed,” she says. “At the time I decided I wanted to get a divorce, I do remember thinking, man I wish I had been much more thoroughly informed and really fought for what I wanted in the prenup.”
Rachel has no desire to marry again but if she did, she still wouldn’t get a prenup. “Even after all I’d been through, I still wasn’t the one who wanted the prenup in my second marriage. I actually believe in community property law. Call me a cockeyed optimist, but I think if you go into marriage, and there’s reason you have to, it is about sharing 50-50 and I believe in that.”
