Prenups Have Become More Popular. Do You Need One?

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Taboos surrounding prenuptial agreements have lessened in recent years, and millennials and Gen Zers have a growing enthusiasm for prenups.

On TV shows like Love Is Blind, engaged couples chat openly about prenups before they walk down the aisle, while celebrities and socialites, like author Belle Burden, have spoken with the press about their own prenups (or lack thereof).123

The most recent Harris Poll on the topic found that 15% of couples who had been married or were engaged in 2022 reported signing a prenup—up significantly from the 3% who had done so in 2010.4

Couples may be more likely to sign prenups now because they're getting married older and entering marriage with more assets, according to Jacqueline Newman, a Managing Partner at family law firm Berkman Bottger Newman & Schein LLP. 5

Prenups may be costly to draft, but some lawyers suggest it's better to be proactive about what could happen in the event of a divorce. It might be easier to hash out who gets the house or ownership of the dog before marriage than when you're angry or upset after a divorce.

"There's a theory that they're only for wealthy people, which I do not think is true," Newman said. "There are definitely people who come to me and say, 'I don't have a ton of money, and I think I might one day—or even if I won't—I want to have some sort of certainty of what it [the future] will look like.'"

For a couple who divorces without a prenup, the division of assets and liabilities will typically be determined by state laws instead. If you live in one of the nine states considered 'community property' states—like California and Texas—the assets and liabilities you acquire during marriage are generally split 50/50 between spouses.6

However, for individuals or couples who want more control over how assets and liabilities are divided if the marriage ends, a prenup provides that control.

Wendy Sun, a 28-year-old software engineer in New York City, didn't think twice about drafting a prenup after she got engaged to her fiancé, who is also a software engineer.

"We always actually assumed the norm for us would be getting a prenup," Sun said. "We've always had relatively equal incomes, and I think it made the prenup a bit easier because we're proceeding with the assumption that we'll continue to have equal incomes."

Newman believes that even the process of drafting a prenup can be beneficial for couples, requiring them to have difficult conversations about money well before marriage.

However, common misconceptions about how prenups work may deter people from getting them.

Karen Robarge, a partner at family law firm Aronson Mayefsky and Sloan, notes that, in New York state, prenups are generally upheld—contrary to popular belief.

"One of the common myths is that they self-destruct after a certain period of time. Sometimes we call that a sunset clause. Those clauses are...very unusual," Robarge said.

Other misconceptions divorce lawyers say they've heard include the belief that custody or child support arrangements can be included (they can't). Infidelity clauses—in which if a spouse cheats, they are penalized in some way—are generally not legally enforceable, depending on the state, though many couples think they are.

Some couples are also put off by the cost of drawing up a prenup. And while prenups often cost thousands of dollars, some online services like Hello Prenup and Neptune allow couples to create cheaper prenups online, with the option of having assistance from a lawyer.78

Divorce lawyers suggest exercising caution when using services to draft prenups. As AI has become more pervasive, Newman says she's noticed an uptick in the use of services like ChatGPT to create prenups.

"I definitely get a lot of people that send me their [LLM] chatbot prenups and say, 'Can you fix this?' It really doesn't work that way," said Newman. "At least in my experience, the prenuptial agreements I'm dealing with have complex assets and a lot of things that people just don't think about."

And while a prenup may not be affordable for everyone, Newman says it's worth exploring because it could save you money in the long run.

"I think it's always worth having a conversation with an attorney just to understand what the options can be, and then you can make an educated decision," she said.