Saying 'I do' to the prenup - debunking misconceptions

Recent research and articles in major media outlets support what many family lawyers have seen in their practices - many couples believe in signing a prenup, representing a significant cultural shift.

Although forms of the prenuptial agreement have roots in ancient history -dating back 2000 years in Hebrew culture (the ketubah) and to the colonial era in the U.S. - as Michael Waters wrote in the New Yorker in 2022 ("Prenups Aren't Just for Rich People Anymore"), "Prenups that addressed the circumstances of divorce - as opposed to death - did not emerge as a relatively popular legal tool in the U.S. until after the Second World War."

Widely viewed as undercutting the marriage institution, into the 1970s (1980s in some states), prenups were rarely enforced in court. As Waters explained, "A Florida case from 1970, Posner v. Posner , ruled that prenups should be enforceable as standard practice and helped bring about a sea change, though one that took years to ripple outward."

In the 1980s and 90s, celebrity prenups started making headlines - remember Elizabeth Taylor and Larry Fortensky (7th husband, 8th marriage), or Donald Trump and Marla Maples? - they shaped public perception of the practice: that it was only for the outrageously wealthy and famous or couples that, for various reasons, seemed doomed from the start.

In a sense, the notion of the prenuptial agreement itself fueled that impression. Why sign a pre-marriage contract to protect your assets unless you believe there is a high probability the marriage won't last and that your spouse intends to make off with half your fortune?

It looked, at best, unromantic and, at worst, like a tacit admission that the partners didn't take their vows too seriously. It likely indicated a lack of trust and goodwill.

A 2003 survey by Heather Mahar, a Fellow at the John M. Olin Center for Law, Economics, and Business at Harvard Law School, found that most couples didn't favor a prenup because it "signaled uncertainty." They saw it as a red flag.

Now, two decades later, in the age of social media and an increasingly celebrity-saturated culture, we know the ins and outs of everyone's prenup - the mega-millions at stake and, in a few cases, the notorious attempts to include so-called lifestyle clauses that dictate things like sexual expectations, or a spouse's weight (Jessica Simpson and Tony Romo), which are unenforceable anyway. Nowadays, it's tabloid fodder when a wealthy, well-known couple doesn't have a prenup (Jeff Bezos and MacKenzie Scott).

These cases only reinforce the image of prenuptial agreements as only for the glitterati. Instead, the numbers show prenups among "average" couples are rising.

According to Axios, 2023 data reveals that half of U.S. adults are now open to signing a prenup. That's an increase over the previous year when a Harris Poll found that 42% said they would sign one.

The 2022 Harris Poll also found that although only 15% of Americans who "have been married or are currently engaged" report signing a prenup, that's up from just 3% in 2010. And 40% of those who today say they've signed one are between 18 and 34. In the 2023 Axios-Harris poll, 41% of Gen Z and 47% of millennial respondents said they'd entered a prenup.

It reflects a generational attitude change. Millennials and Gen Z are significantly more likely to have signed a prenup than their parents and grandparents - perhaps even older siblings.

Numerous factors have contributed to this shift, including:

More women in the workforce today are more likely to be financially independent.

People marry later in life and may bring significant assets to the marriage.

Divorce is less stigmatized than in the past.

With education costs skyrocketing, many people also bring accumulated debt to a marriage.

Household debt is at record highs and climbing rapidly; interest rates are soaring. A prenup can protect against an ex's liabilities, particularly in a community property state like California.

Although the divorce rate has been in slow but steady decline, people know that about 40% of marriages don't make it. Some couples marrying today say that enduring their parents' chaotic divorce has driven them toward a more pragmatic approach.

More couples now grasp that a prenup is a smart and practical move - one that provides a blueprint that significantly streamlines the dissolution process in the event the marriage doesn't last. It helps avoid messy, contentious, expensive, lengthy litigation by ensuring that the division of property and debts is predetermined.

Of course, both parties must work with qualified, independent legal counsel to draft a valid contract. Only a prenup that adheres to fairness, integrity, and accuracy standards will be enforceable and stand the test of time. Cost is still a deterrent for many.

No question, prenups can be a tricky topic to broach. But as delicate and vulnerable as it may feel to address "what happens if we divorce?" Before even marrying, couples are beginning to recognize that it's easier to do it beforehand than on the brink of splitting when both parties are angry, emotional, and less able to act rationally.

Indeed, it's crucial to undertake the process with sensitivity. The goal is to balance creating a healthy marriage - hopefully, a happy, fulfilling, prosperous, lifelong union - with a safeguard if it doesn't work out.

When couples approach the prenup question in an open, honest way, as one step in a holistic process of aligning values and expectations, getting on the same page about how they envision their partnership, and being realistic about their financial circumstances, it can be part of a more significant, meaningful, loving, and ultimately relationship-affirming conversation.

Ideally, as the prenuptial agreement becomes normalized among "normal" couples, its public image will fully evolve from a "hazard warning" to a "safety net."

Debra R. Schoenberg is the owner and founder of Schoenberg Family Law Group, P.C. She handles cases that range from complex financial issues and extensive marital estates to high-conflict custody matters. She can be reached at dschoenberg@sflg.com