Prenuptial agreements, or “prenups” may seem like a modern legal creation, but they actually have existed in some societies for thousands of years. A prenuptial agreement is any contract or arrangement that a couple makes before they are officially married. But, the role and form that these agreements have taken in the United States have changed as our culture’s and legal system’s views of divorce, women’s rights, and fairness have changed.
One of the oldest prenuptial agreements ever found was a 2,000-year-old Hebrew marriage contract. Scholars have found legal agreements that can fairly be described as prenuptial agreements in ancient Egypt. The European custom of dowry is a form of early prenup and dates to at least ninth century. It is even rumored that the English King Edward IV had a prenuptial agreement with his wife Eleanor Butler that was signed sometime between 1461 and 1464.
In most cultures, the idea of marrying for love is a recent invention. Traditionally marriages were entered into as transactions to help families, communities, and countries to gain economic and status advantages. As a result, most of these marriages had written or verbal agreements that dealt with everything from how the bride and groom would be treated by each other’s families to how much money would be exchanged and on what schedule.
Role in Early American History to Protect Women’s Property Rights
Before the United States was created, and when it was still a collection of British colonies, most women were not allowed to own property in their own name. However, this often caused significant issues when a husband was abusive, died, or simply disappeared. These wives could be left destitute and at the mercy of her husband’s family. Eventually single women were allowed to own property, but married women could not own property in their own names.
The legal concept which governed at the time was that men and women become a new, separate unit when they married. Two became one. Women did not need to own property in their own name because they owned it through their husbands. But, this concept broke down when the marriage ended through the death or disappearance of thee man, or in very rare cases, in divorce.
During this time and through the first 75 years of the independent country, prenuptial agreements were designed to make sure wives were not left penniless should their husbands die, become “drunkards”, or disappear.
Prenups Until the 1950s
This started to change with the 1848 Married Women’s Property Act. This allowed married women in the U.S. to own property in their own name.
After this date, prenuptial agreements become less focused on making sure married women would have at least something should her husband die or leave to making sure women could keep their own property and inheritance safe from their husbands.
Wealthy families who had daughters marrying men from less well-established families would often insist that a prenuptial agreement be signed that would keep the husbands from spending all of the wife’s money or wasting her property.
During this period, prenuptial agreements were mostly used by wealthy families to protect the property of their daughters. This practice dominated until the early 1950s when divorce laws began to change throughout the country.
Modern Divorce Changes Prenups
For most of American history it was hard to get divorced. Often, both spouses would have to agree to a divorce before the court would dissolve a marriage. But, starting in the 1950s, divorce laws in the United States began to change. Either spouse was allowed to seek a divorce, even if their spouse was not willing to agree to end the marriage.
Many courts would decide which spouse was at fault for the divorce and that would affect how the marital property was divided. This led to a spike in prenuptial agreements. Both men and women wanted to protect their pre-existing property from being lost in a divorce.
However, often courts would view these prenuptial agreements skeptically and did not always enforce them.
Two legal changes made prenuptial agreements much more common. These were the creation of no-fault divorce laws and community property laws. Many states, led by California, began making it easier to get divorced. You no longer had to prove the marriage was somebody’s fault. You could just decide to get divorced. Many no-fault states also became community property states. That meant that the legal assumption was that any property accumulated during the marriage should be split equally between the two sides in a divorce.
This alarmed high-income individuals and families with substantial inheritances. To keep this wealth from getting split in half prenuptial agreements began to be common for high net-worth couples. Often these agreements had clauses that allowed a spouse to get a higher portion of the marital property if the other spouse was unfaithful.
Today prenuptial agreements are becoming mainstream for couples of all income brackets. They are no longer just for the wealthy. Prenups are becoming more common among every age group and every income group. Millennials are especially enthusiastic about prenups. These agreements are seen as a way to help reduce the trauma and cost of a potential divorce.
A prenuptial agreement can be as simple or complex as a couple needs. They may contain specific clauses that award specific property or they can make general claims to percentages of the marital estate.
Today courts are much more likely to find that a prenup is enforceable than they were a generation ago. When a court evaluates a prenuptial agreement, it looks to make sure that neither side was coerced and that the agreement does not violate any public policy. If it passes these two tests, the court will most likely uphold the agreement.
Courts do not allow prenuptial agreements to decide child custody. They also do not uphold a prenuptial agreement to a specific amount of child support, especially if it is less than the court would normally award under state child support guidelines. But, when it comes to spousal support (alimony) or splitting marital assets, courts rarely have a problem enforcing the conditions of a prenuptial agreement.
Prenuptial agreements have changed a lot over the history of the United States. While once rare, they are now common. Today they are seen a wise way to protect the assets of both men and women and to make divorce less costly.