Prenups Aren’t Just for Rich People Anymore

A few months after Sandy Webb moved from Indiana to Arizona, in 1994, she and a close friend decided to go out for drinks at a bar known for its country dancing, about an hour from Phoenix, in Apache Junction. Early in the evening, two men approached their table and asked to buy them a round. Sandy said no, then relented. Her friend hit it off with one of the men, and Sandy was left talking to the other, a professional carpenter named TJ dressed in Wrangler jeans, boots, and a black cowboy hat. Sandy had recently finalized her second divorce, and she wasn’t interested in dating. When TJ asked for her phone number, she declined to give it to him, but he insisted on giving her his. As she left the bar, she told her friend, “That’s it. I’m done going out with you, because I always get stuck with the stupid one.”She called TJ a week before Christmas. She didn’t know many people in Arizona, and those she did had left town for the holidays. TJ took her out in the desert for target shooting. Three months later, they were renting a house together in Apache Junction. Four years after that, they had co-founded a business, a crane service with a mostly residential clientele. TJ bought a house for the two of them, where they kept chickens, horses, and goats. Like Sandy, he was divorced. He had three kids; Sandy didn’t want to have any of their own. “I really saw no reason to get married,” she told me.Another decade passed, together. In early 2009, TJ began getting frequent headaches. Both of his parents were in the hospital, and Sandy figured that the headaches were stress-related. But they became so debilitating that TJ went to a doctor. He got an MRI and learned that he had cancer, which had already spread to his brain. He was forty-eight. Sandy was forty-three. Staring down the end of his life, he asked her to marry him. “At that point, you have no option but to say yes,” Sandy told me. She had one stipulation: she wanted a prenup.Prenups are popularly regarded as a tool of the rich and famous, the kind of document that a couple signs when one person’s yearly income bleeds into the seven or eight figures. When the public learned, in 2019, that Jeff Bezos, then the world’s richest person, didn’t have a prenup with his then wife, MacKenzie Scott, it prompted a minor uproar. (Bezos and Scott have since divorced.) But prenups have lately found other use cases, for people who are far less wealthy. “I think, more and more, what I would call ordinary people are interested in the tidiness and the finality that they perceive they might have if they have a prenuptial agreement,” Cary Mogerman, the president of the American Academy of Matrimonial Lawyers, told me.Twelve years ago, a poll conducted by Harris Interactive (now Harris Poll) asked more than two thousand adults what they thought of prenups. Three per cent of respondents who were married or engaged reported having signed a prenuptial agreement. Recently, I asked Harris Poll for details about that survey, and the firm offered to pose the question again; this time, fifteen per cent of Americans who were married or engaged reported that they had signed one. According to the poll, nearly forty per cent of married or engaged people between the ages of eighteen and thirty-four have signed prenups, while just thirteen per cent of those between forty-five and fifty-four have done so. For those fifty-five and above, the figure is below five per cent. It’s a single poll, of course, but its findings reflected what I heard from multiple experts: 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.Sandy Webb has worked as an accountant for most of her life, and she knew how ruinous debts could be. TJ had a catastrophic health-insurance plan, but he was still likely to end up on the hook for tens of thousands of dollars’ worth of cancer treatments, which neither he nor Sandy could afford. By the standard laws of Arizona, Sandy knew, the debt that he racked up could be hers after he died. Arizona is a “community property” state, where any income or property acquired during a marriage is typically split fifty-fifty. If one spouse opens a bank account during the marriage, for instance, that account, and all the money within it, is generally joint, unless a prenup specifies otherwise. There are nine such states, and they include the country’s two most populous, California and Texas. In most of them, including Arizona, the community-property principle extends to debt: creditors can seize the community property of both spouses, or even garnish their wages, to collect on the debts of one. In community-property states, especially, prenups have become a way for some couples to insulate each other from the worst impulses of the American debt-collection system.Sandy and TJ went to a lawyer a week after TJ’s diagnosis. The prenup they ultimately signed declared that each spouse’s income and possessions—guns, jewelry, a ten-acre property in southeastern Arizona that belonged to Sandy—was owned separately, and that any debts acquired during the marriage would fall solely on the shoulders of the partner who incurred them. TJ’s medical debts would not become Sandy’s problem.In the Americas, prenups date back to the early days of colonialism. Among the seventeenth-century Canadian colonists of New France, men outnumbered women six to one. These men often married poor women from French cities, known as the filles du roi, who immigrated to the Americas for economic opportunity. The filles du roi—or “king’s daughters,” so called because King Louis XIV helped pay their way, in an effort to grow the population of New France—were so coveted that they could negotiate the terms of their marriage. More than eighty per cent of them convinced their husbands to sign prenuptial contracts, according to “Lonely Colonist Seeks Wife: The Forgotten History of America’s First Mail Order Brides,” a paper by the law professor Marcia Zug that was published in the Duke Journal of Gender Law & Policy, in 2012. These contracts often gave women the right to keep dowries and other income as their own property, a rarity at the time.In England and France, where the gender ratio wasn’t nearly as lopsided, women didn’t have the same leverage—and, in the Americas, as that ratio evened out, that negotiating power disappeared. In the nineteenth century, some wealthy women tried to contract around coverture laws that gave men sole control of property, but everyone was against them, Zug said. Drawing from a work in progress, she told me the story of Harriet Douglas, a wealthy woman who, in 1833, agreed to marry a lawyer named Henry Cruger, who had pursued her for a decade. She required him to sign a prenup that would let her maintain control of her property, estimated to be worth a hundred thousand dollars, equivalent to more than three million dollars today. Henry did so, then threw a fit. She offered Henry an allowance, but he insisted that she wasn’t “treating him like a man,” Zug said. He refused to drink the wine at their house, insisting that he “did not own it,” and refused to ride in the carriage because it legally belonged to his wife. Writing to Harriet, Henry called their prenup a “poignard of ice” that “portends that you and I are not one,” and he enlisted Harriet’s friends to convince her to take it back. One of them urged her “to relieve” her husband “from a state of dependence.” She relented in 1841, and the two signed a new agreement entitling him to half of her property.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. As late as the nineteen-seventies, when couples did sign prenups, courts rarely enforced them, insisting that prenups promoted divorce by laying out the worst-case scenario in advance. 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. (Ohio, for instance, didn’t consistently enforce prenups at divorce until 1984.) It was during the next two decades that the contemporary image of prenups really took hold. “In the nineteen-eighties,” Julie Salamon wrote, in this magazine, a quarter century ago, “as Wall Street players made fortunes and exchanged old wives for new ones, the prenuptial agreement became a kind of financial instrument, like a junk bond.” An early-nineties prenup signed by Donald Trump and his second wife, Marla Maples—which reportedly limited the payout to Maples if the marriage lasted less than five years—both popularized prenups and helped fix a certain idea of them in the public imagination. (Salamon quotes a friend of hers saying, of Trump and Maples, “This wasn’t a marriage. This was a lease with an option to buy.”)Nearly every state now leans on the side of enforcing prenups, but states have widely varying provisions outlining what can make a prenup enforceable. The one that Sandy and TJ agreed to likely would not have been upheld in California or Washington, where each party is required to consult with a different lawyer. Washington will furthermore only enforce prenups when both parties fully disclose their property before signing. Among other provisions, Connecticut requires a window of time between when a prenup is presented and when the marriage takes place. The list goes on.Depending on whom you talk to, these provisions are either necessary protections for the more vulnerable spouse or a relic of the idea that prenups are inherently unbalanced. Mogerman, the matrimonial lawyer, supports waiting periods between the introduction of a prenup and the wedding date. He described a case in Missouri where a woman received a revised prenup “on the way to the rehearsal dinner,” adding, “You really can’t have free, fair deliberation over the terms of a prenup under those circumstances.” But Elizabeth R. Carter, a law professor at Louisiana State University who has taught a class on community property for a decade, has come to see many of these rules as unjustified roadblocks to prenup-making. To her, some of these regulations—like requiring separate, independent lawyers—only end up making prenups more expensive.Carter first taught her community-property class in 2010, soon after joining the L.S.U. faculty. At the time, she was engaged; she and her fiancé were both lawyers, and they had spent four months mired in the nuances of the marriage rules in Louisiana. Carter had some personal property that she wanted to protect; her fiancé had student-loan debt. They decided to write a prenup themselves and signed it ahead of their wedding the following January. In 2016, Carter published a law paper arguing that, as she put it to me, “everyone that’s getting married should have a prenup.” She was surprised by the skeptical reactions that she got from fellow law professors. Prenups, she heard again and again, were inherently unequal, since they almost always involved a wealthy (usually older, usually male) partner pressuring a less affluent fiancée to sign away the rights to a fortune.Carter wasn’t convinced. Many people she knew getting prenups in Louisiana weren’t wealthy, and, in “the vast majority” of cases that she has seen, Carter told me, “there really wasn’t some big inequity in bargaining power.” Louisiana is a community-property state, and people were using prenups to protect themselves—from creditors who wanted to collect on debts, from lost income if one of them stayed at home to parent. Owing, in part, to Louisiana’s unique civil-law system, Jefferson Parish, just west of New Orleans, is one of the only places in the country where prenups are regularly recorded. Carter decided to compile the data, and, in 2019, she published a rare statistical study of prenups in the U.S., looking at Jefferson Parish in the years from 2013 through 2016. She found no major age disparities between couples that signed prenups; slightly more people who signed them had been married previously, but nearly a quarter of the marriages with prenups involved spouses who were both getting hitched for the first time. Many worked not in finance but in fields such as nursing. “These are not exceptionally wealthy people, for the most part, who are getting these,” she told me.One reason that couples get a prenup, she has found in her research and in her experience practicing law, is to build in a backstop to debt collection. Debt threaded through the prenups she read in other ways, too: in one Louisiana prenup, a couple agreed that a wife-to-be’s student-loan debt, which amounted to a hundred and thirty thousand dollars, was “to be paid out of the joint-community income,” including the husband’s income, and that the husband would not be entitled to reimbursement down the line.In recent years, Carter has seen another concern emerge in a number of prenups: how to address the financial issues that stem from one partner choosing to stay home to raise children. One prenup she read specified that, should the wife “quit her job for the benefit of the marriage,” the husband would “be responsible for monthly payments to her retirement in an amount equal to her average monthly contribution during the prior twelve (12) months.” Any payments that he missed would accrue a five-per-cent interest. A community-property system might make the most sense for couples where one spouse stays at home, since it entitles that spouse to half of any new income; historically, people may have supported such a system for precisely this reason, according to Alessandra Voena, who researches family economics.States that do not follow community-property rules use an “equitable distribution” system, in which couples choose which of their assets they want to pool together; at divorce, all shared property is distributed “equitably,” according to the needs and the contributions of each partner, not fifty-fifty—or at least not necessarily. But the equitable-distribution system varies from state to state. Say one spouse enters the marriage with a business. In some states, if that business doubles in value during the course of the marriage, the business owner gets to keep nearly all of the income; in others, the appreciation in value is deemed to belong to both spouses. For a stay-at-home parent who sacrifices traditional wages for household labor, these differences can be critical during a divorce.Drafting a prenup can be a way around the vagaries of state law—without one, Carter noted, “you’re assuming that your state legislature has the best rule for what happens to you at either death or divorce, because all marriages end in one of those ways.” But the variance in state regulation also affects how well spouses can insulate each other from debt. In some states, prenups aren’t always enforceable against creditors; in Nevada, for instance, prenups are considered “effective only as between” the couple, meaning that a third party, such as a creditor, needn’t abide by them. In Arizona, in one case, a bank sued a married couple for repayment of a bank transfer. The transfer was done in the husband’s name, and the wife denied knowing about the transfer. They subsequently divorced. An Arizona court found that the bank had the right to garnish her wages even after she split from him.In Europe, couples can have more choice in how their marital property is divided up. In the Netherlands, which has a limited community-property system, couples can register prenuptial contracts directly with the national government, and roughly a quarter of couples choose to do so; in Italy, couples choose how they want their property to be divided up—community property or separate property—when they register to marry, and don’t have to hire an expensive lawyer to write a prenup if they don’t like the standard rules. (Around seventy per cent of new couples in Italy choose the separate-property system, according to Voena.) Of all U.S. states, only Alaska and Tennessee come close to replicating Italy’s system. Both have an equitable-distribution regime, but allow couples to select a community-property system at marriage. Letting couples choose their preferred system gives them some of the flexibility of a prenup, without needing to write a complex contract.Kelly Chang Rickert is a family-law attorney in California who specializes in prenups. She fields prenup requests from business owners, from people in the entertainment industry, and from couples in which one partner is likely to become a stay-at-home parent. These days, she told me, concern about debt “comes up a lot.” She recently had a client whose husband died from COVID after roughly two months in the hospital. By the time that he passed away, he had racked up medical debt in the six figures. “So they started sending bills to her address,” Rickert said. “Had she not had the prenup, then this debt that was accumulated during the marriage would be community.”Rickert has become a popular personality on TikTok, where she posts no-frills videos about prenups and other aspects of marriage law for nearly four hundred thousand followers. In one, she portrays an opposing lawyer who claims that Rickert’s client owes money; cut to Rickert spinning around and clutching a sheet of paper with the word “PRENUP” written in large font, above a caption that reads “Prenups protect.” The popular TikToker @yourrichbff, who has a million and a half followers, is also pro-prenup (and pro-role-playing): in one video, she plays both members of a couple, one with a mustache, one without, hashing out their finances against an image of a floral wedding canopy. One partner objects to the idea of a prenup by saying, “This isn’t very romantic.” The other responds, “If we can’t talk about money now, how are we going to talk about all of the other tough topics?”,c_limit/waters_prenups_social.jpg
© Davy Mellado, 2022. All rights reserved.