I’m a family law attorney and a feminist, and over the years I’ve seen slews of couples in the throes of divorce proceedings. One of my most important takeaways from this work has been learning that prenuptial agreements can and should be written in a way that protects women, not just men. Here’s why. 

The Gender Wealth Gap

You probably know about the gender pay gap (the unfortunate reality that on average, women earn less for every hour worked than men, despite being highly educated and skilled) but have you considered the gender wealth gap? This is the amount of money that women have compared with men, rather than what they earn on an hourly or annual basis. The discrepancy in the gender wealth gap cannot be accounted for by the gender pay gap alone. 

Why else might the average woman have less wealth than the average man? A major part of the answer is that by and large, women are far more likely than men to take time off after childbirth, and the amount of time they take off to care for a newborn is more time than men becoming fathers take off. Aside from just needing to take time off in the weeks and months after birth, women are also more likely to step back from their careers long-term to raise their children. Some stop working entirely, while many others continue working (sometimes cutting back from full time to part time) but sacrifice career growth for more time with their kids. 

Even women who don’t necessarily intend to sometimes end up taking career breaks for their kids; a Pew Research Center survey found that mothers were much more likely than fathers to report “significant career interruptions” due to the needs of their families. Additionally, the physical toll of giving birth leads many women to take time off to deal with medical problems, as well. 

Let’s add up all these different factors contributing to the gender wealth gap: Women taking time off for childbirth + working less hours or not at all while kids are growing up + sacrificing career advancement + the existing gender pay gap = less wealth for women overall. What’s more, less wealth for women overall can translate to less power and agency in their marriages. When women are substantially less wealthy than their male partners, they may feel somewhat dependent. They may therefore be disinclined to speak up about things in their marriage they aren’t happy with, and they may be more likely to stay with a partner out of necessity, even if they want to leave. This dynamic isn’t good for men, either; it fosters resentment and therefore ultimately increases the chances of relationship woes and breakdowns in trust and communication. 

However, prenups written with the gender wealth gap in mind can go a long way towards financially empowering women and therefore creating relationship dynamics that promote, rather than erode, collaboration and communication. Writing a prenup with an eye towards the gender wealth gap means including alimony stipulations that thoroughly account for the wealth discrepancy should the marriage ever break down. But before we get to that, let’s talk about the current situation regarding alimony in Massachusetts:

As it stands now, Massachusetts alimony guidelines take into account the length of the marriage and the earning spouse’s salary. It is a simple calculation which does not account for the unpaid contributions of the non-earning (or lesser-earning) spouse. It does not take into account untold hours spent changing diapers, preparing family dinners, wading through a sea of continually-accumulating laundry, or educating children. Instead, alimony stops at full social security retirement age, which means that even a woman who was married for 15 years and sacrificed her prime career building years to care for children would only receive alimony for about 10 years, tops. Of course, the same alimony laws would apply to a male partner who stays home with the kids (alimony became gender neutral in the 1970s), but as it stands today, 97% of alimony recipients are women.

If a woman only sacrifices 2-4 years of career-building to care for children, the alimony calculation described above might make more sense and be fairer because a woman in that position would still be able to step back into the workforce and recover some prime income-generating years. However, for women who sacrifice a larger chunk of their careers, the current system leaves them at a major financial disadvantage compared with partners who climb the career ladder and generate increasing quantities of wealth during that time. 

Luckily, couples who write prenups are able to contract around their state’s divorce laws. In doing so, they can create their own alimony guidelines, which might be more nuanced than those laid out by the state of Massachusetts. For example, a couple might agree that the state’s alimony stipulations would apply up until the female partner had taken at least 3 years off work to raise children, after which a more generous alimony arrangement would go into effect. Some couples also might prefer that alimony be a lifelong arrangement (rather than one that terminates at social security retirement age) were they to divorce after having children. 

Aside from alimony, couples who write their own prenuptial agreements also have the option to make things feel more fair and even by granting more assets to a female partner who stays home with kids. For example, she could be given the house in case of divorce, or a certain portion of her spouse’s future inheritance, or could even receive a particular lump sum (to replace her salary) for every year spent at home caring for children. Prenups enable couples to get creative (within the bounds of state law, of course) in making arrangements that make sense and feel fair for their specific situation. In doing so, they can empower and protect women and contribute to a healthy, fair, and balanced relationship dynamic.

References

On Pay Gap, Millennial Women Near Parity – For Now

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1 Comment

  1. This is a good idea. The issues involving children are complex. Many men don’t need as much money as they earn. More men, even if they earn substantially more than their wives, might choose to take time off work to raise and enjoy their children, once they understand how much doing otherwise may cost the men. This gives the man the benefit of time off with his children with the financial hit for this time off shared with his wife. If divorce ensues, a prenup explicitly stating the value of his time off work, should help protect his wealth and future earning power in divorce settlements.

    One woman I mentioned this to was appalled. As she saw it, she lost the benefit of more time with her children which she valued (which he gained) and her standard of living decreased during the marriage because his earnings decreased.

    People have different assessments of value, so a prenup setting agreed upon values would be beneficial.

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