If you, like everyone else, are reading Belle Burden’s memoir on marriage, Strangers, you probably noticed that prenups feature dramatically in the storyline. I have made no secret of the fact that, over the years, I do not have a strong positive opinion of prenups. In fact, my experience with prenuptial agreements throughout the years is mostly as a vehicle to perpetrate ongoing financial abuse of a less financially secure spouse.
Does it have to be that way? No. But my experience is that many partners who are well off enough to warrant pursuing a prenup also know very well what the law is and are unwilling to negotiate an agreement that would give their spouses MORE than the law allows. Literally, why would they do that? The whole point of the agreement is for them to retain more of the money and to deprive their future ex-wives of access to that money. Giving them more than they’d receive under the law is just … counterintuitive.
I’ve had little real world experience (if any, at all, unless you count a few supportive posts on social media that give little actual background or specific information) that contradicts this belief. To this day, some of the worst cases I’ve had are the ones where prenuptial agreements have been signed because there’s usually little else we can achieve in the case because the damage has already been done.
If you can believe the news reports, Belle Burden had a trust fund worth some $63 million at the time of her marriage. Her prenuptial agreement was something her family – she comes from some generational wealth, obviously – insisted on. She agreed, but her husband made one small addition. Anything they generated during the marriage would be the property of whoever put their name on it, so they could keep some assets separate. Her attorney advised against this and advised her instead to make marital property marital and owned by both of them, but she went against his advice.
She also kept this fact from her family, went on to use her trust to purchase two pieces of very expensive real estate for the family, putting it in their joint names (despite him having contributed $0), and paid little to no attention to the family finances from that point forward.
She was almost entirely a SAHM, doing some pro bono attorney work, and had three children. Meanwhile, her husband earned millions, which he quietly deposited into accounts and even invested in his sole name.
You can – and should – read the memoir. It’s beautiful, poignant, devastating, and astute. It’s a truly beautiful piece of writing and a reflection on marriage. What she did, what she didn’t do, and what happened as a result; it’s all there.
Is she an absolutely incredible product of privilege, the likes of which I have never seen in my office? Absolutely yes. Belle Burden is nothing like the average woman with whom I work. She has options available to her that most of us don’t, whether we divorce or stay married, but the point isn’t her generational wealth. The point – at least for our purposes today – is the prenup.
According to her prenup, her trusts were separate, but when she purchased and titled those accounts in their joint names, she effectively commingled them to the point that they became marital assets. They also intended, at some point, to dissolve the prenup – or, at least, that was her understanding and intention – but they never did. So, when they separated, and eventually divorced, there was some initial litigation where her husband threatened to take the two homes himself.
Eventually, they end up settling, he concedes the houses – not that he didn’t have an interest, but he lets her have them – but he keeps the wealth he quietly generated during the marriage. To that point, the prenup stood, and it cost Belle Burden substantially.
The point?
Even in a case where the prenuptial agreement was quite literally drafted to protect Belle – the initially wealthy one – the provisions in it were used to leave her without a share in what was earned during the marriage (amounting to millions) that she would otherwise have been entitled to receive.
It’s not a “Oh, poor little millionaire,” situation, though. It’s a very big money example of a problem that can exist in a much less wealthy marriage, too. To be denied an interest in what was earned during the marriage, whether it’s hundreds of millions, a single million, or just hundreds of thousands, is devastating.
Belle Burden will be okay. Would you?
It is so important to know what you’re signing. To participate in the financial affairs of the marriage on an ongoing basis. To follow through on creating (or dissolving) important documents, according to you and your partner’s specific wishes.
She admits what she did wrong, though – in large part – it mostly amounts to loving and trusting her husband. The problem isn’t really what she did or didn’t do, it’s the fact that her now ex-husband leveraged her trust against her after two plus decades of marriage.
Belle Burden’s divorce was not in Virginia. But, even in Virginia, a prenup – or postnup – could have a tremendous impact on what an attorney can achieve in a later divorce. Make sure you know BOTH what the laws are in your state – if you’re in Virginia, like me, consider requesting a copy of one of our books on Virginia divorce – and how your prenup would alter them.
Consider, too, what choices you make after, in your marriage, if a document like that is signed. It is so tempting to trust in the relationship, but, especially if you have a prenup, you need to be a little extra strategic.
It’s not about Belle Burden or anyone, really, except you. The choices you make, now and in the future, will impact you for years to come. If you really want to get a prenup – or your partner does – you should carefully consider provisions that are included, insisting on several, at least, that are beneficial to you. If you waive access to spousal support, division of assets or real estate, an interest in businesses built, or retirement generated, there needs to be some major offsets. There need to be financial disclosures. All too often, these things are not done or don’t adequately protect the lesser earner.
You probably don’t have real generational wealth, a trust fund, or multi million dollar properties to fall back on.
For more information, to request a copy of our books, or to schedule a consultation, give our office a call at 757-425-5200 or visit our website at hoflaw.com.