Just a few years out of college, Zack is pulling down a six-figure salary working at a hedge fund and dating a girl he thinks he’s going to marry. His friends are pushing him to get a prenup.
“It’s not falling in love and getting married because you want to grow a life with somebody anymore,” he says. “People are starting to look at marriage like a business relationship. It’s sort of amazing to think that it’s taken until this century to realize that’s what it really is.”
It’s not that he doesn’t love his girlfriend, or understand the psychological benefits of starting a life together on equal financial footing—“One hand washes the other,” he says. But he’s heard plenty of divorce horror stories, not just about the Ron Perelmans and Ellen Barkins of the world, but about the bankers, traders, and finance guys in his midtown office building. And he’s too practical to ignore the risk of losing more than a hundred grand in liquid assets if things turn ugly at a later date.
To test the waters, he casually brought up the issue of a prenup with his girlfriend recently. Her reaction: “Shock.” If Zack really wanted the prenup, she would go along with it, she told him. But she would never tell anyone about it. Not even her parents.
Prenups are a difficult, embarrassing thing to discuss, admits Zack, who asked that his name be changed for that reason, but the conversation is becoming more and more common among his peers in the financial sector. Traditionally the exclusive province of billionaires or serial spouses looking to protect the inheritances of their children from previous marriages, prenups are now attracting young, successful professionals like Zack who are marrying for the first time and looking to protect assets that are in the six figures rather than the sevens. Broad-based statistics on the secretive, spouse-to-spouse agreements do not exist, but divorce lawyers and marital therapists point to a boom in this new kind of prenup-seeker. The Equality in Marriage Institute, a nonprofit that advises couples, reports that the number of prenup inquiries it received more than tripled from 2003 to 2005, to 5,000 a month.
“Everyone is hedging their bets,” says Bernard Clair, divorce attorney to fashion designer Carolyne Roehm and socialite Jocelyne Wildenstein. Clair says his prenup business has more than doubled in the past five years and that a third of his clients are now couples entering their first marriages. “It’s almost like there’s a split-personality syndrome that’s going on with the younger prenup couples right now,” Clair says. “It’s equal parts optimistic hope and resigned pragmatism. They’ve seen what divorce’s destruction can do, and they want to armor themselves to avoid any collateral damage.”
In fact, one of the reasons younger couples are seeking prenups is that it’s nearly impossible for New Yorkers to maintain an it-won’t-happen-to-us attitude: The divorce rate in New York State is nearly eight times higher than the national average.
Another factor driving the prenup boom is that couples are waiting until they’re older to marry—the average age in New York City is between 30 and 34—which means they’ve had time to acquire more wealth. “There’s so much money around, and so many divorces, when you put the two together, you get an explosion,” says attorney Robert Stephan Cohen, who has counseled Mayor Bloomberg, Uma Thurman, and James Gandolfini through their divorces. In the past month, Cohen says, he was retained by five clients for prenups: two Wall Streeters (an investment banker and a trader), a commercial-real-estate broker, a female advertising executive, and a family heir—all in their mid-thirties, all getting married for the first time.
Young couples are also asking for prenups to protect future wealth. New York is one of only a few states to allow potential future earnings tied to professional licenses or partnerships or degrees to be deemed marital property. Alton L. Abramowitz, chair of the New York City Bar’s matrimonial committee, says this is why he would never let his daughter, Blythe, get married in New York without a prenup. She wants to become a famous singer one day, and at 12 years old, she already sings with a local opera company. Blythe could be subject to an enhanced earnings claim someday, says Abramowitz. “I wouldn’t want anyone entitled to half of her talent.”
Personal wealth isn’t all that’s at stake. One of Bernard Clair’s clients is a 28-year-old attorney making $180,000 a year and on the path to making partner at one of the city’s largest firms. The client’s reason for getting a prenup isn’t to control the amount of alimony his wife-to-be should receive if they got divorced, Clair says. His primary motivation is to protect his firm against a barrage of discovery motions. “Companies often send off-the-radar messages to their partners and managing directors to avoid exposing the company to a carpet-bombing of documents,” he says. “That means executing a prenup that specifically keeps the company out of the matrimonial mix.”
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.”
The emotional toll can be even higher when couples try to use their prenups to dictate behavior within the marriage. These “lifestyle clauses,” as they are called, might include a “no-diaper clause” that specifies no children, or “fling fees” for infidelity (Catherine Zeta-Jones is believed to have such a clause with husband Michael Douglas). But the clauses can also get excruciatingly specific: whether the children will be raised vegetarian; how often a couple should have sex (no more than once a month in the case of one septuagenarian couple); whether children will attend Hebrew school (and which one and how often); how much time a couple will spend at their in-laws’ (not more than two consecutive days, in one example); which exercise equipment they should purchase (a treadmill, then a bike); which nights a husband can watch football with his friends; how many hours a spouse will work during the week; how long a husband is expected to work before he retires; and, of course, how much weight a wife can gain (in one case, a fine of $500 per excess pound). These clauses are nearly impossible to enforce in court. “It’s a declaration of expectation,” says divorce attorney Raoul Felder, “something you can point to: ‘You promised me this’ or ‘You broke your promise to me on this.’ People are looking for commitment like that.”
Because signing a prenup is so emotionally fraught, some attorneys are concerned about the trend of younger, first-time fiancés’ parading into their offices. “When you get a prenup, you’re negotiating a divorce before you even get married, which is a very destructive thing to do and isn’t conducive to having a good marriage. It’s an ugly document,” says Eleanor Alter of Kasowitz, Benson, Torres & Friedman. And most people don’t need them, she says. For a 23-year-old who works at a hedge fund and has $750,000 in assets, no children, and no prior marriages, a prenup is going to cause more trouble than it’s worth. “The only people who really need prenups are successful people in second marriages with children to provide for,” agrees Kenneth Burrows of Bender, Burrows & Rosenthal. Even family money doesn’t necessarily require a contract: “Inherited wealth isn’t marital property in New York,” he says, “so you’re not going to have to share that money with your spouse, so long as it’s in a separate account.”
“People were scandalized when people first bought life insurance, too. It was seen as obscene” says sociologist Dalton Conley. “But today people are called foolish if they don’t.” The same thing will happen with prenups.
Many couples who decide to go through with it aren’t prepared for just how tense and awkward the negotiations can be. Gigi, who met her future husband in a Bronx hospital (he was a doctor, she was a physical therapist), wasn’t bothered when he asked her to sign a prenup before their marriage in 2001. “He had all the money,” she says. “I didn’t want to be greedy.” But the negotiations were so difficult that there were times when she thought about walking away from the table and the relationship. “They tell me if I am not married to him for ten years, then I’m not getting anything. I’m like, ‘Screw you! You should live with him then.’ ”
In the end, Gigi was satisfied with the outcome. The ordeal was unromantic, but she thinks having an unromantic experience before marriage may not be such a bad thing. “When you get to a certain point in life, the reality is that relationships are more than just romance.”
Those who advocate for prenups say that this kind of crucible is good for marriages, and that it’s important to get money issues out in the open early on in a relationship. “The basic philosophy is that if you take the time to get married, you should take the time to discuss what role money will play in your relationship and what your endgame is for divorce,” says Courtney Knowles of the Equality in Marriage Institute. This means discussing questions like, Who will contribute what to the relationship? How will bills be paid? Who will be responsible for what expenses? And what can each party expect if the marriage is dissolved?
Donald Trump says that his prenuptial agreement with Melania Knauss has made his marriage stronger. (Though it is worth noting that he’s been down this road twice before; both Ivana and Marla Maples contested their agreements—and lost, Trump points out.) “It’s a hard, painful, ugly tool,” says Trump. “Believe me, there’s nothing fun about it. But there comes a time when you have to say, ‘Darling, I think you’re magnificent, and I care for you deeply, but if things don’t work out, this is what you’re going to get.’ ”
Plus, the prenup can act like a crystal ball, he says. If a couple can make it through the cold, sobering legal process and still manage to be on speaking terms at the wedding, the marriage has a chance. If not, it was never meant to be.
That’s not much comfort to those for whom it wasn’t meant to be. “If it weren’t for the prenup, I’d be married right now with three kids,” says Leslie, a 58-year-old retiree who once owned a lucrative textile company in the garment district. His prenup trouble started eight years ago, when he walked by a midtown coffee shop and noticed a woman sitting by the window. “She was this great California chick,” he remembers. “Tall, blonde, gorgeous. I’m 50. She’s 36. We’ve never been married. I love her and she loves me and we’re gonna jump over the moon together. So I go talk to one of my lawyer friends about the prenup, one of these highfalutin lawyers who handles all the celebrities. He draws the whole thing up.”
Leslie’s prenup proposed that his fiancée would be entitled to one alimony payment in the low six figures after two years of marriage and two times that amount after five years of marriage. “It wasn’t the worst deal in the world. She had nothing. I had the business,” he says. “But when you put the numbers in the prenup, boy, does it feel cold. The emotions are flying around, and here you are before the wedding talking money, material. Love, it’s not a material thing.”
When Leslie handed her a draft of the document—accompanied by a full disclosure of his finances as mandated by law—she freaked. Considering all the money Leslie had in the bank, she felt he was being petty. He disagreed. They haven’t spoken in the past five years. She’s married to another man now, has a kid, and lives in North Carolina. Leslie has his Sutton Place apartment, his rental in Florida, and his home on the beach in the Hamptons, but he still doesn’t have a wife. He’s 58 and running out of time. But he can’t bring himself to tie the knot without an ironclad prenup.
He’d be a fool without one, he says. “The state says she’s entitled to half of everything. Half? Whoa. Let’s say five years from the wedding day, you hate each other. She found someone else. You found them cheating. You want a divorce, and now she gets half? You’re telling me, now I gotta write a check for $10,000 a month and she’s with another guy? I’m not gonna be that schmuck.”