“Why Millennials Love Prenups”:
For much of the twentieth century, judges almost always refused to enforce prenups, fearing that they encouraged divorce and thus violated the public good. They were also concerned that measures to limit spousal support could lead to the financially dependent spouse—usually the woman—becoming reliant on welfare. Nonetheless, in the twenties, as divorce rates increased, potentially pricey payouts became a topic of national debate. As the sociologist Brian Donovan observes in the 2020 book “American Gold Digger: Marriage, Money, and the Law from the Ziegfeld Follies to Anna Nicole Smith,” a veritable “alimony panic” set in. To avoid paying any, men transferred deeds, created shell companies, and, in New York, set up “alimony colonies” in out-of-state locales such as Hoboken, where they wouldn’t be served with papers. Even though courts were equally loath to award alimony—“Judges publicly criticized alimony seekers as ‘parasites,’ ” Donovan writes—the perception that men were being fleeced persisted.
There had been limited cases since the eighteenth century in which prenuptial contracts were recognized in the U.S., but these typically pertained to the handling of a spouse’s assets after death. The idea of a contract made in anticipation of divorce was considered morally repugnant. In an oft-cited case from 1940, a Michigan judge refused to uphold a prenup, emphasizing that marriage was “not merely a private contract between the parties.” You could not personalize it any more than you could traffic laws.
But by the early seventies there was no stemming the tide of marital dissolution: the divorce rate had doubled from just a decade earlier. In 1970, a landmark case, Posner v. Posner, was decided in Florida. Victor Posner, a prominent Miami businessman, was divorcing his younger wife, a former salesgirl. He asked the judge to honor the couple’s prenup, which granted Mrs. Posner just six hundred dollars a month in alimony. The judge, in his decision, acknowledged the cultural shift: “The concept of the ‘sanctity’ of a marriage as being practically indissoluble, . . . held by our ancestors only a few generations ago, has been greatly eroded in the last several decades.”
In the early eighties, following protests by women’s organizations, New York State had passed a new law that declared that all marital assets would no longer go by default to the titleholder—typically the husband—but would have to be divided according to “equitable distribution.” Judges were given a number of factors to consider in determining what was equitable, including the contributions of a “homemaker” to the other spouse’s “career or career potential.”
[T]hose living in poverty are typically splitting not assets but debts. In many cases, it’s “coerced debt”—the result of credit-card applications filled out by a spouse without a partner’s knowledge, for instance.
[Y]ounger generations might be seeking out prenups because there’s greater awareness now of the cost of litigation, both financial and emotional. […] [S]ome partners “file motion after motion just to wear down their victim, just to force them to try to walk away with less.”
We sign prenups in pen, but our lives are written in pencil; plans can easily get erased, vows smudged to the point of illegibility. “That’s why older people cry at weddings,” one divorce attorney told me. “Because we know that young couples don’t know what they’re getting into.”