Prenups and Intellectual Property

Regular readers know I believe prenuptial agreements are overused. Too often they make the injustice of divorce worse by rewarding a breadwinner spouse (usually the husband) and leaving the stay-at-home-and-care-for-the-children spouse (usually the wife) poorer than she would have been under normal principles of family law.

Unfortunately, it appears this trend will be made worse by what the New York Times is reporting as a burgeoning trend of millenials signing prenups to protect each spouse’s intellectual property rights, like copyrights, web site startups, books written, etc.

It’s not at all unusual for spouse A to support spouse B while B is working on a book, or a web site, or a startup company. By definition, B contributes nothing in the early stages of the work, and maybe the family lives on beans and corn bread, but both spouses are hopeful that they’ll both enjoy a big payoff when the work is finished or at least further along. If their marriage ends after A has been providing support but before there’s any meaningful payoff, normal principles of family law would at least consider an argument that, particularly after a lengthy marriage, the result of B’s work is a marital asset available for division between the spouses.

On the other hand, if A and B signed a prenuptial agreement 15 years ago that allowed each spouse to walk away from even a lengthy marriage without the need to share intellectual property with the other, A gets the shaft. Spouse A worked hard, ate all that beans and corn bread (probably after being the main one who cooked it), and now gets nothing, while B goes on to sell that great startup to a mega-corporation for billions and retires to a  ranch in Nevada to raise Australian show horses. Seems unfair to me, and perhaps to you too.

In most states, though, prenuptial agreements don’t need to be fair to be enforced if both spouses have their own advocate at the time they’re negotiated. And having been the advocate for a few of those spouses, I can tell you that the advocate has little influence and almost no leverage when both spouses are eager to say “I do.”

If you know someone who’s caught up in romance and is surrendering to their lover’s demand for a prenup, please share this with them. They may still agree to the prenup, but at least there’s a better chance they’ll remember the risk down the road.

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