As a very cool teenager who was invited to many (OK, three) parties, I remember any playing of Kanye’s track “Gold Digger” inevitably brought the (parent’s) house down. “If you ain’t no punk, holla, ‘We want prenup! WE WANT PRENUP, YEAH!'” everyone would yell in unison. But if you asked any one of us to explain what a prenuptial agreement was…shrug…
If you Google “prenuptial agreement,” you’ll learn the basics—it’s a contract entered into prior to a marriage, by the people intending to marry, that commonly addresses the handling of money, property, and spousal support in the event of a divorce or sometimes death. But then, the Internet will do what the Internet does best and hit you with the weird stuff like “insane celebrity pre-nups” with “scandalous details.” Wait, can you actually include clauses pertaining to adultery, pets, and even physical appearance in a legally binding document?
“Barring language concerning children, you can literally put anything you want into an agreement,” says Raoul Felder, an New York City family and matrimony lawyer with 40 years’ experience and over 1,000 (!) prenuptial agreements to his name. “But it may not be enforceable! That’s the thing. The court isn’t there to mini-manage people’s lives.”
Enforceable or not, Felder says many couples still choose to include “lifestyle clauses.” The term is precatory law for these types of personal, social agreements people want to sign, he explains. “It indicates their state of mind at that particular time and it indicates a moral commitment, so to speak—except when it doesn’t. I’ve had many unfortunate immoral requests over the years.…”
Obviously we couldn’t let that go without further interrogation. Below, Felder and two other real-life NYC lawyers—leading partner Alyssa Eisner of Sager Gellerman Eisner LLP and Jenifer Foley, cofounder, attorney and partner from Alter, Wolff, & Foley—(1) tell us the craziest prenuptial agreements they’ve ever been asked to draw up and (2) offer some advice about those circumstances in which the great philosopher West was right: “It’s somethin’ that you need to have!”
BRIDES: Give us the crazy first! What are the wackiest, weirdest, or straight-up wrongful prenup demands that real couples have come in with?
Foley: It’s always the animals that are the nuttiest. The dogs. The cats. There was a bird. I tend to approach animals like property, but there’s this new world in which we’re approaching like a custody.
Eisner: Probably the silliest thing someone has asked of me is to account for “parenting time” to a cat. I don’t think felines really apply as children, but a woman was hellbent on ensuring her spouse commit to “visitation rights” to the cat. The cat’s name was Monte. I remember it all too well. I also remember a wood-burning stove that almost blew up a whole agreement, believe it or not. It was the husband’s, but the parties had lived together and it was a fixture in the home already. I can’t remember how we worked it out in the end, but it got dicey.
Felder: The crazy comes in different categories: You get ones with pets. There’s what we used to call “flower child agreements,” where to supposedly keep the peace, it has things like, “You will be the house husband and take out the garbage, and I’ll do the laundry” or “I’ll make the food; you’ll buy the wine.” Then you’ve got religious people who bring up stuff like, “If we have a child, we’ll bring up the child as a Roman Catholic and put him in Catholic school.” Finally, you have really personal, personal stuff. “We have agreed to have separate bedrooms and we will have sex two times a week—no more, no less.” We’ve also had agreements with open marriages. “We can have additional private relationships.” But again, all these agreements are probably not enforceable.
How about other detestable but juicy stuff? Weight gain? Cheating? Gold digging?
Felder: I’ve had two over the years about losing weight. In one, part of the deal before the marriage was that one of the spouses would hit a target weight. “You will agree to lose 100 pounds.” And in that unfortunate case it was the female, and he was only agreeing to marry her on that condition. In the event that they divorced because she hadn’t, she’d be penalized in some way.
Eisner: I’ve had the infidelity clause. It’s difficult to prove and tricky to define, but I’ve definitely addressed what will happen if a spouse cheats and how that will affect the monetary amount he or she receives. But it can often become a he-said-she-said. Some of the more typical clauses are not so much about behavior, but length of marriage. They’re called sunset clauses, so “If you’re married for x amount of years, you’ll get x amount of dollars.”
Felder: You’d think it’s some obvious crockpots who are requesting these kinds of prenups, but these couples look like perfectly normal at first.
What are the more “normal” things couples are negotiating?
Foley: People come in simply saying, “We want to do a prenup.” Then we lawyers screw things up. Couples’ll say, “We’re going to be very amicable about the dog in the case of a divorce. We’re just going to share custody.” Then I, as the terrible lawyer who points out all the things that nobody wants to hear, have to say, “Well, what happens if he has a new girlfriend? Are you going to let him and his new girlfriend pick up the dog? What if the girlfriend has a cat and the dog doesn’t like the cat? Can the dog stay at the house if someone gets a second dog?” You get, “Oh, that’s not going to happen.” But this is my job—to say to you now while we’re talking about this, that if I put in this agreement that he can have the dog every Saturday, then you understand that even if he gets a cat and a girlfriend and moves into an apartment that you don’t like, he gets the dog every Saturday. Couples may not come in with the crazy, but it’ll happen as we get going. It’s endless, the hyperspecific things you may have to address. One thing your readers need to get out of this, is this concept that these agreements are supposed to be enforceable contracts, and if they can be, they will be. So, if you guys are really going to work this out, why don’t you just work it out and we won’t put it in the legal agreement?
Eisner: I’m in the middle of drafting a prenup as we speak! Usually, it’s about family jewelry, or the setting of an engagement ring. Maybe it was a gift, but it if was set in grandma’s antique heirloom or something like that, it becomes an issue. Since the establishment of “no-fault divorces,” [Ed. note: Meaning a marriage can be dissolved without requiring proven wrongdoing or breach of the martial contract by either party] instead of focusing on the grounds for a divorce, we look at how notice is given and when the prenup is invoked. Those types of standard clauses say something like “Upon someone commencing an action for divorce, then the prenup shall become effective.” Maybe it mentions sending a letter that says “I no longer want to be married to you.” I generally try to strike those clauses in my agreements because they’re so arbitrary. Someone could get angry and send a letter, and then all of a sudden the prenup is a go!
Foley: Prenups are hard. [Laughs] I don’t think people like to talk about money. One of the hardest parts of a prenup is for everybody to get comfortable discussing money. But if you come in and just say, “Look, I’ve made x amount of money as a single person, and I’d really like to protect it, I’ll say to you, “You don’t need a prenup. You had that under New York law as separate property, just keep it in a separate account and don’t touch it. It wouldn’t go into the martial pot.”
Ever talked people out of of something you felt was unconscionable?
Foley: In some of these cheating cases, what happens depends on who files for divorce. So, “If she starts sleeping with the pool boy and she dumps and leaves me, why should I have to pay her all this money? She should get less.” Well, I’ll say I can’t do that. What if he’s beating her? You can’t prohibit somebody from filing for divorce, and you can’t prohibit someone from going to the police. But these are the kind of things that people start to talk about when their emotions take over.
Felder: Sometimes when I start explaining everything, couples want to back out of the marriage. A number of lawyers have said to me that after attempting to negotiate prenups, some of their clients’ marriages never take place. Prenups start at your most vulnerable point, and at that time, couples can find themselves opposites with antagonistic theories. Arguments start, and then the in-laws come in! But there’s a rationale for cases taken to trial that agreements can’t be unconscionable to a degree. Even if it’s ridiculous, the law protects people who sign unconscionable agreements.
Foley: The law also tries to keep up with the fact that spouses may contribute differently to an economic partnership. When a stay-at-home mom takes care of the children, the law has supported that she has an equitable interest in her husband’s business. There’s no “It’s my money! I made all the money and you stayed home!” Well, no. She managed the family social calendars, she helped kids with homework, she aided in business decisions, she cooked, she cleaned—those were all economic contributions. They just were nontangible.
Do men and women often come in with different types of prenup requests?
Felder: I’ve seen wacky—I hate to call them wacky, because many are based in legitimate concerns. But, I’ve seen unfortunate stuff come from men and women both.
Foley: It’s very rare that I have a case any more that goes back to the more traditional. We’re really changing women’s roles in the world. More and more have jobs and make money and will hopefully eventually be paid dollar for dollar. Now, a lot of men are staying home. Men want 50/50 parenting time. I think we’re moving into an area that has nothing to do with men or women, but has to do with division of wealth. Who is coming into the marriage with money or the potential to earn money? But I will say—maybe it’s the glass ceiling or this idea that if she fought harder to get it, she’ll fight harder to keep it—I get a lot of women coming in on the onset with “He can work, and he can certainly go to work a whole lot easier than I can—why should I give him money in a divorce?” versus men coming in and just saying, “How much money do I have to give her?”
Are more people getting prenups these days?
Felder: Yes. When I started practicing law 40 years ago, we never drew these. People said, “I’m marrying for love. I don’t want to sign any agreement.” You never heard of them. But then they started getting socially acceptable. [Ed. note: We see you, Kanye!] Another reason is that the law got very intrusive when it came to divorce. It became quite extensive and expensive to have lawyers looking at everybody’s records and lives. Divorce became a disease, and a prenup was the vaccination.
Foley: We have a lot more prenups now then we’ve ever had. I’m not a psychologist, but the feeling I get is that the next generation, millennials, are all about, “Wow. We’ve seen all these ugly divorces, so let’s really plan out everything.” On the one hand, you’re like the laid-back generation, and on the other, you’re trying to be more responsible and practical, coming into my office like, “Yeah, we’re just going to keep everything separate.” I’m seeing more people who are just starting out—who don’t have family money or an accumulated, tremendous amount of assets—saying, “We want to decide now how we’re going to distribute the stuff we may or may not ever have.” I have people who come in and want to talk about kids who aren’t even born. That’s not enforceable because the U.S. court system has determined that matters involving children must be decided in the children’s best interests, and that’s impossible to do preemptively. But, the fact that people are thinking ahead and that they want something in an agreement shows that everybody wants to control the future.
And that’s more pronounced than it’s ever been?
Foley: I think so. The thing that bothers me about prenups is that I can’t predict the future. What you think is fair today given your age or circumstances might not be fair 10 years from now, and that agreement is still going to be enforced. So to me, it either has to be a living, breathing document, or you have to remember what the terms are. I tell people, especially the nonmoneyed spouse, “Look, you can sign this. But if you agreed to keeping things separate, you can’t wake up 15 years later and be like, ‘Holy shit. Everything’s in his name!’ Now I have no ability to help you.” You can always go back and change a prenup, but now you have no leverage other than the threat of divorce, right?
So, do you advise your friends to get prenups?
Foley: I tell people I don’t believe in prenups. [Laughs] No, I say, tell me your circumstances.
Felder: Oh, yeah. You’re not protected otherwise. Today, people still say, “Oh, it’s only for very rich people.” That’s not so. The person who sells you the ticket to the movies may someday own the theater. This is America. Everything is possible. Divorces frequently come about like wars—because of miscalculation. With prenups, there’s no miscalculation. You know where you stand at any point in time. You don’t have to start the divorce case and think, “Oh, God. I don’t know what I’m going to get.” Most lawyers tell people, “Listen, go on and live your lives the way they’re going to be. Put this prenup in a drawer and forget about it. But if you have a dispute, look at it. Know what each of your rights are.”
Eisner: People do ask me. Personally, I’m married for a second time, and I did not opt to have a prenup. Do I think they’re important to have for some people? Yes. Do I recommend them for everybody? I don’t. It depends on personalities and different people’s needs and expectations. It’s also not inexpensive to negotiate a prenup. That has to factor in as well.
What are the circumstances in which a couple should consider a prenup?
Eisner: The purpose of shielding premarital wealth comes into play most often when someone has a business, a pension, children from a prior relationship, or any dependent really who they want to ensure receive assets or benefits. The other purpose of having everything spelled out beforehand is to limit exposure and to not have to go through, God forbid, a lengthy divorce proceeding .
Felder: I’ve drawn prenuptial agreements for the wealthiest families in America who have said, I think with some right, “Listen, we’ve made all of this money and it’s for you. And when we’re gone or retire, or you’re gone, we don’t want to see it go to a stranger.”
Foley: I’d say if it’s a second marriage and there are children from both, or it’s an older couple and there are family assets, money, trust funds, or a family business. But, just because you signed a prenup, that doesn’t always mean getting divorced will be simple. It can sometimes mean that things are more complicated. If someone challenges the prenup, you have an entire court action about the prenup, and then you do the divorce. It can take forever to get to a trial and a court, and cost a fortune.
Eisner: Absolutely, some people go into it thinking, “What’s mine is mine, and I always want it to be mine. ” But oftentimes, especially with younger people, their families are pressuring them to protect interests that concern the whole family. But many people don’t realize that inheritance is separate property and belongs to the party that inherited it if you never commingle it with marital funds. I often have to remind clients, “We’re not planning your divorce; we’re planning your wedding, and that’s a good thing, you know?” Sometimes people get angry and upset like, “She can’t have that!” or “Why do I have to share that with him?” and I’m like, “You’re sharing your life. We’re not dissolving; we’re creating. I’m used to having to reel it in and have everyone calm down a little bit.”
At this point, you must all have soothing skills on par with those of a couples therapist.
Eisner: [Laughs] Yes, without the mental health degree. That’s correct.
Felder: Yeah. For a lot of young people, this is the first time they’re realizing what’s involved in a marriage—when they start getting questions from a lawyer. The problem for the lawyer is, you’re here to make a deal, but you’re not here to break up a marriage, so you’ve got to be very careful with your wording.
Any last-minute advice for how couples concerning prenups, or perhaps how to avoid needing your therapy services?
Foley: Even if you have no intention of having a prenup, you should both go see a lawyer in whatever state you’re going to live. Meet just like you would sit around with your friends and have those difficult conversations. Maybe it’s not that I believe or don’t believe in a prenup in any certain case, but you really should know the law. Domestic relationships are state law, and you should know how things are accumulated, what happens in the event of a death, what happens when you have children, et cetera. How does the law approach this? If the two of you can’t work it out, what’s the law going to do? Then with that knowledge, then the two of you can decide, “Do we want to set some sort of terms that are a little different than the law?”
Eisner: If something is not in the prenup and you’ve gone through the trouble of drafting, it’s not protected. So, sometimes you’re better off in my opinion not having a prenup, rather than just limiting it to certain specific assets. And the most important thing to remember is that if you’re marrying this person, you want to build a relationship on trust and fairness. If you’re going into this with skeptical eyes, and you really feel that you have to shield all of your assets and protect yourself because this other person may to try to take from you should something go wrong, then perhaps you need to rethink going into this at all.
December 2, 2017