I’ve just spent a couple weeks hanging out with friends who are getting married. It’s been fun, and I’m happy for them, but I’ve been surprised by how so many of them–perfectly intelligent, educated, successful professional women–seem to think that their looooove will gloss over all the icky risks and realities of married life…including divorce. Not one of them has paused to consider the very serious legal and financial implications of marriage. To a certain extent, you can’t blame them. Our media culture–movies, novels, reality TV, ladymags–constantly force-feed women a diet of unrealistic romance whose only goal is to tie off every storyline with a fairy-tale wedding. What comes after is unimportant, because, y’know, you’re married.
Problem is, if you wind up in divorce court–as happens about 50% of the time for first marriages and even more often with second marriages–you will find out real fast that marriage has some very unpleasant legal ramifications that your fairy godmother didn’t warn you about.
That’s when you–and your spouse–may wish you had a prenuptial agreement. For a full explanation of how prenups work, who needs them, and how to contract them, go here.
Back in the days when men made all the money, it used to be that pre-nups’s sole purpose was to protect wealthy men from fortune-hunting women (as Kanye West eloquently describes in the lyrics to “Golddigger”–which are the title of this post). These days, however, women are making money, buying homes and owning businesses, and they are asking for pre-nups. It’s trend which can only be good for womanity.
I am an unashamed fan of pre-nuptial agreements, in large part because I live in a state with outdated and notoriously difficult divorce laws. There is no such thing as “no-fault” divorce in New York, as there is in other states. One party has to bring suit against the other, forcing even amicable splits to become adversarial, and turning non-amicable ones into living nightmares. New York is also a community property state, which means that anything acquired during the marriage–or any debts incurred–must be split 50/50 upon divorce, regardless of who earned the money or who racked up the debt. The only people who benefit are the lawyers. Everyone else usually winds up with a lot less money and long-lasting emotional damage.
Author Elizabeth Gilbert, of Eat Pray Love fame, describes her interminable–but not exceptionally so–divorce thusly:
The divorce–long after I’d walked out on the marraige, was still not happening. I started doing dreadful things out of my worst divorce nightmares, like writing damning legal accusations (required by New York State law) of his alleged mental cruelty–documents which left no room for subtlety, no way in which to say to the judge “Hey, listen, it was a really complicated relationship and I made huge mistakes too and I’m very sorry about that, but all I want is to be allowed to leave.”
He wanted the cash and the house and the lease on the Manhattan apartment–everything I’d been offering the whole while. But he was asking for things I’d never considered, a stake in the royalties of books I’d written while we were married, a cut of possible future movie rights to my work, a share of my retirement accounts.
It took Gilbert–who at that point in her career was earning a good living, but was hardly wealthy–more than two years to settle her divorce, because of claims and counter-claims and disputes over marital property. At the end of that chapter, she adds a wry note:
Here, I pause to offer a prayer for my gentle reader: may you never, ever have to get a divorce in New York.
Elizabeth Gilbert recently remarried–it’s the subject of her about-to-be published follow-up book–and I think it’s a safe guess that she had an iron-clad prenup this time around, in order to spare her another soul-sucking round of “cover your assets” (especially as she made a small fortune off the book sales and movie rights for Eat Pray Love).
Like Gilbert, there are more women realizing–sometimes belatedly–just how damaging a divorce can be to their finances and peace of mind. A recent article in the Guardian looked at the rising number of women asking for pre-nups:
“We’re moving on as a society where women are a bit more realistic about relationships and whether or not they’re going to endure,” says Amandeep Gill, an associate of the law firm Davenport Lyons. “Times have changed. These days, you’ve got far more women in the workplace, they’ve generated wealth independently and, particularly if you’ve got a woman marrying later on in her thirties or forties, it’s natural to want to protect one’s wealth.”
I once sat with a lawyer and drafted a pre-nup for my own anticipated marriage. We both owned homes, had retirement accounts and roughly equal net incomes, and he had a lot of debts and liabilities–child support, credit card debt and a big, ARM mortgage. I wanted to make sure that if things didn’t work out, that I wouldn’t be stuck with his debt nor could he claim a share of my earnings, as Elizabeth Gilbert’s ex did. Things broke down for other reasons, and the papers were never filed, but I’m grateful for the experience–I received a good education in how to protect myself financially from the consequences of divorce.
There are still the nay-sayers, though, who think that a prenup–by confronting the possibility of divorce–somehow disrespects or dooms the marriage.
To some women, though, the idea of planning the divorce before the marriage has even begun makes a mockery of the vow ‘for richer, for poorer’. Mother of two Julie Spalding, 32, from Dorking, married banker David, 36, four years ago without a prenup. Even now, mid-recession, Julie doubts whether they would have proposed the idea. “I don’t know if I would have signed it. The whole notion of marriage is that it’s forever, so if I thought that David was thinking ‘Well, if our marriage ends …’ then that’s quite sad really. I think I would have been disappointed and slightly offended.”
This is akin to the ass-backwards argument that being knowledgeable about birth control makes a woman slutty. A pre-nup doesn’t make you more likely to end your marriage–it just protects you from the worst of the consequences if you do.
I also suspect there’s a gender element to this particular woman’s distaste for the pre-nup. If it had been Julie who was the banker and breadwinner, instead of David, she might not have felt a pre-nup was “quite sad.” She was in her 20s when they married, and quit working, so it wouldn’t be to her advantage to have a pre-arranged division of property, because none of the money or assets coming into the marriage were hers. A stay-at-home mom who’s dependent on her husband is better off suing for a generous settlement in the divorce. (Although it should be noted here that prenups are not actually enforceable in England as they are in the US, but judges will take them under advisement during divorce proceedings)
Some of us, however, have income and assets we’d hate to part with. I don’t care how much I love a man–my financial security is hard-won and vitally important to me, and any man worth his cojones will appreciate that. In fact, if he didn’t, that would be a big red flag. Says another woman interviewed by the Guardian:
As unromantic the proposal might sound, Williams believes prenups are a basic financial decision. “It is 100% practical and it has nothing to do with love and romance. Prenups create more certainty and it will also protect us from each other’s debts. I deeply love my partner and we are devoted to each other. I worked extremely hard for my money and my partner appreciates my intentions.”
Unless you’re willing to risk your financial stability for the sake of a rosy and idealized vision of marriage, or you trust that you’ll marry a rich man who will generously kick some of his money your way if you divorce, for the love of Dog, ladies, get the pre-nup.