Thanks in part to high-profile arrangements such as Perelman’s, prenups have also become more socially acceptable. “People are not stupid,” says Dalton Conley, professor of sociology and director of the Advanced Social Science Research Center at New York University. “They know love is not something that always lasts forever anymore. People were scandalized when people first bought life insurance, too. It was seen as obscene, akin to gambling on what should be left in God’s hands. But of course, today people are called foolish if they don’t cover their own lives.” The same thing will happen with prenups, he says. It won’t be long before there are do-it-yourself kits or online forms you can download with your partner and fill out at home.
He might be right. Attorneys expect proposed amendments to New York’s divorce laws to further spur the popularity of prenups. In February, the state’s chief judge, Judith Kaye, proposed that New York join the rest of the country and become a “no fault” state, which means you wouldn’t need a provable reason to get divorced. Jeffrey T. Strauss, matrimonial attorney at Wachtel & Masyr, says a no-fault law in New York will likely push the divorce rate up and create more demand for prenuptial protection.
The last thing I ever thought I would ask for is a prenup, not in a million years,” says Alexandra, a senior executive at a New York banking firm who asked that her real name not be used owing to the sensitivity of the issue. Her parents are middle-class, happily married, and her ideas about love are gooey and lofty. She was looking for a Hepburn-and-Tracy kind of match: “verbal repartee—with joint interest,” she says. She met her husband, Mark, a corporate attorney, on a blind dinner date set up through friends. A little more than a year later, he proposed to her on a trip to Bangkok, and she said yes without thinking twice.
But back in New York, chatting with her co-workers in the banking industry, Alexandra began to worry about money. As a corporate attorney, Mark made a respectable living, but his assets didn’t compare to hers. What if they were to divorce? What if Mark hired an overzealous attorney? What would happen to her savings, her 401(k), her apartment? She had purchased a West End Avenue co-op years ago on her own.
New York is an “equitable distribution” state, which means that any assets purchased or earned during the marriage are “marital property” to be distributed equitably upon divorce. It sounds reasonable, but “ownership” and “equitable” can be fuzzy concepts. For example, if Alexandra owned her co-op before her husband moved in, the apartment would be hers after the divorce. But if her husband helped make repairs during their marriage, he could be entitled to a percentage of the appreciation as determined by a judge. Unless, that is, she had a prenup that specified otherwise. Modern prenups seek to navigate the gray areas beforehand, specifically dissecting any financial interests that can be deemed “marital property,” whether that’s real estate, cars, boats, savings, stock portfolios, pensions, or future earnings.
A few weeks after they came home from Thailand, Alexandra asked Mark about a prenup. He was upset and confused at first. Then he caved. She thinks it’s for the best. “I guess all the financial-planner jargon had been ingrained into my head from working here so long,” Alexandra says. “Hope for the best, plan for the worst, right?”
Alexandra, who has now been happily married for five years, was lucky. Virtually every divorce lawyer has war-room stories about one spouse-to-be standing up from the negotiating table, walking out of the lawyer’s office, and never speaking to her fiancé again. Prenups challenge the very nature of marriage—its sense of permanence, its illusion of inviolability, its fragile web of commitments. Marriage is, ultimately, a leap of faith, and expressing such fundamental doubt before you’ve even begun has a way of creating feelings of betrayal that might never go away.
It’s especially difficult for the spouse without the big bank account, says Dr. Diana Kirschner, a clinical psychologist, marital therapist, and author of Opening Love’s Door: The Seven Lessons. “Here you are, all in love, and suddenly you’re across the table in a business negotiation with the man you want to spend the rest of your life with, and now all of a sudden he seems very controlling, self-centered. And this isn’t an area where you are particularly skilled or comfortable and maybe he is. The wedding is a month or so away. And now you’re in a double bind. You’re thinking, I don’t want to sign this thing like an idiot because I am giving away all that I’m entitled to under the law. But if I don’t sign, then I disappoint my family and I go back to being single and I think I might never get married—because all your fears and insecurities are out.”