Excerpt from Chapter 2, “The Generous Prenup: How to Support Your Marriage and Avoid the Pitfalls,” now available on Amazon and online booksellers.
Just as there are good and bad reasons to get a prenup, there are certain categories of people who should probably have them and others who don’t really need them. Although the ongoing media blitz may make it seem that everyone should have one before marrying, it is not true. Prenups are sometimes suitable for people who are not affluent. However, it’s generally true that prenups are most appropriate for four basic groups: the wealthy; older people; people with children from a previous relationship; and those with significant premarital assets. People of more modest means, especially younger couples entering a first marriage, often do not need a prenup at all. But be careful with this one: The Gender Pride Prenup.
Gender-role pride: He doesn’t want anything to do with money he didn’t earn. She doesn’t want to be seen as a gold digger.
In some marriages where there might otherwise be a questionable need for a prenup, a future husband or future wife may want to voluntarily disclaim the earnings or wealth of the more moneyed partner before the marriage. I hear this all the time, both from men and women clients. They want to disclaim marital rights even if the lack of sharing might put them in a precarious situation in the future.
The male partner may say, “I don’t need her money. I can make it on my own.” The female partner almost always insists, “I’m not a gold digger, and I don’t want to be seen as one.” I call this type of agreement the “gender-role prenup.”
He has been taught that he is the one that needs to make money in the family. To rely on her money (or her family’s money) would be embarrassing to him and certainly a romance-killer. In fact, relying on her money or earnings in this culture generally puts a damper on romance for both the man and the woman. (The opposite, interestingly, is generally not true.)
The male partner has been taught to be in control and to be capable – in short, to “be a man.” She is attracted to him because of these attributes. Her money (or her success in earning money) upsets these mutual expectations. In order to nip this problem in the bud, he’s willing to sign a very restrictive prenup. He will usually sign virtually anything to resolve this issue – no matter what’s in the prenup and how restrictive it is. I have heard real horror stories about the results of this particular fact pattern for the man when a divorce occurs.
The problem with such a proposed solution is that situations change during a long marriage. It’s unfair for a man to end up after thirty or thirty-five years with nothing to show for his work after having contributed all his earnings to a marriage. Maybe it seemed okay to him when he got married at thirty, but now that he’s sixty or older and a divorce is happening, it doesn’t seem fair, and he’s understandably worried about his future. Because of the prenup, he will be left with few assets and little income to retire on. He wishes he hadn’t signed that prenup and feels like he was a fool. He’s right. He was foolish to sign it.
There is ample case law already addressing this type of situation to cover people who didn’t sign prenups. The general outline of these cases is this: The man provided all his earnings to support the family. The couple’s mutual expectation was that the wife’s family wealth (inherited and/or gifted) would provide for both their retirements. The divorce interfered with those expectations.
In cases like this where there is a divorce with no prenup, the wife often insists in the divorce action that the wealth derived from her family inheritance should not be shared with her husband but instead remain within the bloodlines. In these cases, courts will generally try to build equity into the situation by giving the husband some of the wife’s inherited or gifted assets, or perhaps a disproportionate share of marital assets in his favor, in order to secure his financial future.
But if the couple had signed a prenup to the contrary, he would have waived this equitable right, and the prenup would likely be enforceable, leaving him in the lurch after working all those years and supporting his family.
On the other side of the gender divide, I often represent women who are in the process of marrying very prosperous men. This is not surprising, because even in this era of employment advances for women, the data show that women still earn less than men on average, even for the same jobs. Men generally do not have a problem marrying and supporting women who have less lucrative career paths than they do. I’ve seen men enter into second marriages without prenups, even if they’re still paying alimony from their first divorces and even with second wives who are not actively engaged in the job market. As they say, “love is blind.”
Frequently the women who initiate prenups under these circumstances have been dating and cohabiting with their male partners for a long time. They insist that they love them for who they are, not for their money. Often the terms of the prenups they are about to sign will make things worse for them than if they married someone without money but without a prenup. At many points during these negotiations, the women will state that they don’t want to be seen as gold diggers. At these moments, they tend to back away from terms that would benefit them and that are quite reasonable, even in a prenup.
Remember, prenups change the normal rules of marriage, generally to the detriment of the less moneyed spouse. A female spouse-to-be who is trying to eliminate the perception that she is a gold digger by signing a very restrictive prenup is putting herself in a very financially precarious situation.
For more about the pros and cons of prenups, and if you decide to have one, how to make a prenup that is sound and helps rather than harms your marriage, read “The Generous Prenup.” Now available on online booksellers. For more information, visit www.laurieisrael.com
Copyright © 2018. Laurie Israel. All rights reserved.