• Jeffrey Weaver

When did Prenups become so popular?

Prenuptial agreements once had a negative stigma attached to them. In the old days, prenups protected the party with the most money, which often was the man and fostered resentment and fear within the marriage. However, the number of couples signing a premarital agreement before tying the knot has skyrocketed in recent years. These days, the stigma of entering into a prenup is ancient history, thanks in part to the many same-sex couples, females and millennials who have viewed the idea of a prenup as a smart business/life move.


I think that the growing popularity of prenups across the U.S. is really a function of the evolution of society into a culture that embraces progressive principles.


REASON 1: ADOPTION OF UNIFORM PREMARITAL AGREEMENT ACT IN 1983


The rise in popularity of premarital agreements (also called prenuptial or antenuptial agreements) can be traced back in the early 1980s. The Uniform Premarital Agreement Act (UPAA) was drafted in 1983 partly in response to the large number of people who were getting married and intending to continue to pursue careers outside the home.


The purpose of this law was to promote more uniformity and predictability between state laws relating to these contracts in an increasing transient society. The UPAA was partly enacted to ensure that a prenup that was validly entered into in one state would be honored by the courts of another state where the couple might get a divorce.


28 states and the District of Columbia have adopted the UPAA or the updated Uniform Premarital and Marital Agreements Act (UPMAA) passed by the Uniform Law Commission in 2012, which Acts generally set forth the clear requirements needed to make marital agreements enforceable and legally binding. The laws do have variances from state-to-state, but the UPAA certainly made it much easier for practitioners to figure out how to prepare legally-compliant prenups for clients.


As of this date, 22 States have not adopted the UPAA or the UPMAA, but still allow premarital agreements (AL, AK, GA, KY, LA, MD, MI, MN, MS, MO, NH, NY, OH, OK, PA, SC, TN, VT, WA WV and WY).



REASON 2: THE SUPREME COURT FINALLY GUARANTEED THE SAME MARRIAGE RIGHTS TO SAME-SEX COUPLES IN 2015.


In 2015 the U.S. Supreme Court finally granted same-sex marriages the same legal footing as marriage between opposite-gender couples, in the case of Obergefell v. Hodges (Decided June 26, 2015). Writing for the majority, Justice Anthony Kennedy asserted that the right to marry is a fundamental right “inherent in the liberty of the person” and is therefore protected by the due process clause, which prohibits the states from depriving any person of “life, liberty, or property without due process of law.” By virtue of the close connection between liberty and equality, the marriage right is also guaranteed by the equal protection clause, which forbids the states from “deny[ing] to any person…the equal protection of the laws.” Kennedy then argued at length that “the reasons marriage is fundamental,” including its connection with individual liberty, “apply with equal force to same-sex couples.” Such considerations, he concluded, compel the court to hold that “same-sex couples may exercise the fundamental right to marry.”


This Supreme Court decision essentially means that a prenuptial agreement that is validly entered into by a same-sex couple in one state is fully enforceable in another state in the event of a divorce, even if that state’s laws do not allow same-sex marriage.


After finally having been granted the same legal marital rights as opposite-gender couples, many same-sex couples have taken advantage of the ability to get married with a premarital agreement to protect their interests, increasing the popularity of the prenup.


REASON 3: THE MILLENNIAL GENERATION IS MORE SKEPTICAL OF “TILL DEATH DO US PART” AND ARE GETTING MARRIED LATER IN LIFE.


According to a recent survey taken by the American Academy of Matrimonial Lawyers (AAML), 62% of divorce attorneys reported seeing an increase in the total number of clients seeking prenuptial agreements before marriage in recent years. Notably, more than half of the matrimonial attorneys who responded to the AAML survey also reported an increase in the number of Millennials requesting prenuptial agreements. (SOURCE: 2014 survey of family and matrimonial lawyers taken by the American Academy of Matrimonial Lawyers. See “Prenuptial Agreements on the Rise Finds Survey,” AAML press release, Oct. 28, 2016.) Millennials in particular are choosing premarital agreements as the preferred option to protect separate property holdings, business interests, and to avoid potential alimony disputes.


There is a longstanding misconception that prenups are only for wealthy individuals seeking to avoid alimony. The Millennial generation is shifting the paradigm and finding that prenuptial agreements are valuable for most income levels, especially if either spouse has school loans, business debt, or been married previously. Many Millennials have realized that a prenup is an opportunity to pre-negotiate and guarantee a minimum/maximum amount of alimony. They tackle the agreement as a team as part of their wedding planning and get married with confidence.


It is possible that some relevant characteristics that are unique to Millennials (born 1981-96) have contributed to their generation’s embrace of premarital agreements. Millennials are getting married later than previous generations. In 1965, the average American woman first married at age 21 and the typical American man wed at 23. By 2017, those figures climbed to 27 for women and age 29.5 for men. (SOURCE: Pew Research Center, How Millennials today compare with their grandparents 50 years ago, March 16, 2018.)


Because they are marrying later in life, Millennials have had the opportunity to accumulate more assets (savings/retirement accounts, car, etc.). According to the AAML survey, the most common item covered in recent prenuptial agreements was “protection of separate property.” (SOURCE: AAML 2014 survey.) That result suggests that Millennials have worked hard to accumulate their assets and savings during their single years, and they want the protection for their property during their married years that a prenup can provide.


As a generation, today’s Millennials are much better educated than their grandparents. Women have certainly made gains in educational attainment, and are now more likely than men to have a bachelor’s degree. Women are also outpacing men in attaining advanced post-graduate degrees, and these gains have contributed to their progress in the workforce at large. (SOURCE: Pew Research Center, For Women’s History Month, a look at gender gains – and gaps – in the U.S., March 15, 2018.) Perhaps it should come as no surprise that, according to the AAML, more and more women have been requesting prenups in recent years.


For many Millennials, their higher education burdens them with debt in the form of student loans, often with jaw-dropping balances by the time they graduate. The increased student loan debt that burdens the Millennial generation may also be prompting partners to enter into premarital agreements. Because they are marrying later in life, Millennials have had the opportunity to accumulate more debt (car loans, mortgages, student loans, etc.), and life just gets more complicated as we age. If one spouse has significantly more debt than the other, a prenup can insulate the debt-free spouse from the other’s debt if the marriage ends in divorce.


Some experts theorize that Millennials have more doubts about the longevity of marriage in general. Why would Millennials evaluate the traditional pledge of “till death do us part” with more skepticism than generations past? Maybe it’s because Millennials have had more exposure to divorce and its consequences than any previous generation. Only 62% of members of the Millennial generation were raised by both parents, whereas 85% of Boomers (born 1946-64) were raised by both parents. (SOURCE: Pew Research Center, Missing Mom or Dad, March 22, 2010.) Millennials have experienced divorce through their family and friends at all-time high rates, and they aren’t naïve and want to protect against it. Maybe that also explains why this generation hasn’t exactly rushed to the altar.


This prenup wedding trend that Millennials have ushered in may not be fun, sexy or romantic—but it sure is forward-thinking.

Jeff Weaver is an AV Rated Attorney
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