The Evolution of Prenuptial Agreements: From Inequality to Empowerment

Prenuptial Agreement Meeting

The Evolution of Prenuptial Agreements: From Inequality to Empowerment

In the United States, prenuptial agreements, often referred to as “prenups,” have a complex history. These agreements, created and signed before marriage, define what will happen in the event of a divorce. Although prenups are now widely recognized as a helpful financial planning tool for all, their origins are rooted in a time when women’s rights were severely limited.

In the 18th and 19th centuries, women had few legal rights, especially regarding financial independence. Upon marriage, a woman’s property, wealth, and legal identity were often transferred to (or absorbed by) her husband. For example, until the 1960s, women were prohibited from having their own bank account without their husband’s signature. Before 1937, women could not initiate a divorce. And even after they gained the right to initiate a divorce, they had to prove adultery, cruelty, or desertion, before modern-day no-fault divorce laws took effect in all 50 states. 

Property Rights

Once women gained property rights, prenuptial agreements were primarily used to protect men’s property—and gain control their wives’ assets. Women were also often required to forfeit any property or inheritance in the event of a divorce, leaving them without financial resources. Simply put, even in recent history, prenups were used as a tool to limit women from having control of their financial futures. 

Many women were pressured into signing prenups without fully understanding what they were signing or the implications of such agreements. They rarely had their own legal representation and the laws at that time did not protect their interests. Even when prenuptial agreements were blatantly unfair, the courts most often upheld them. This led to women in abusive relationships feeling that they had no choice but to stay in the marriage. 

This misuse of prenups reflected the broader social attitudes about gender roles and marriage. Women were expected to work inside the home as wives and mothers, while men were expected to work outside the home as income earners

The legal status of women began to change as the Women’s Rights Movement gained momentum in the late 19th and early 20th centuries. The Married Women’s Property Acts, passed in various states throughout the mid-1800s, granted women the right to own and control their own property. However, it wasn’t until the 1960s and 1970s that prenuptial agreements began to be used more equitably. And, even today, this history causes some women to be hesitant to enter into a prenup. 

The No-Fault Divorce

With the rise of no-fault divorce law and the increased number of women in the workforce, prenups started to be seen as a way for both partners to protect individual assets and establish clear financial expectations. Dual-income households have been the majority of families in the United States for the past two decades. In fact, there are a growing number of families where women are higher income earners than their male partners. Today, prenuptial agreements are generally used by both partners to safeguard personal assets, inheritances, and businesses of both spouses and to outline spousal support and property division in the event of divorce. 


“Prenuptial agreements can feel balanced, 

and be created in a positive, supportive, personalized way.”

— Karen Aurit

Founder of The Aurit Center for Divorce Mediation 

Mediation and Prenuptial Agreements

Mediation can make challenging conversations about finances before marriage feel positive and provide for both partners. At The Aurit Center for Divorce Mediation, we understand the importance of creating equitable agreements that protect the financial stability of both partners. Our professional mediators guide couples in crafting personalized agreements that prevent disputes and misunderstandings in the future. 

By openly discussing finances before marriage, couples lay the groundwork for a transparent and trusting relationship. 

Couples who create prenups can also avoid costly and lengthy court battles in the event of a divorce. By addressing issues of spousal support and property division pre-marriage, couples can ensure that neither party will be left financially vulnerable. They even have the option to make alimony agreements and custody arrangements for future children. This is especially important if the couple decides one parent will stay at home to provide child care. 

Mediation provides a neutral, supportive environment where couples can express concerns and negotiate prenuptial agreements that they both find acceptable.  And should circumstances change and both spouses want to re-address any aspects of the prenup at the time of divorce, mediation is the opportunity to do just that.

“Each person is encouraged to tell his own story in his own way. Acknowledging emotions promotes movement towards settlement. Discussing both legal and personal issues can help you develop a new understanding of yourself and the other person.” 

– American Bar Association

The Aurit Center for Divorce Mediation specializes in helping couples have productive conversations. We guide a process that ensures both parties are heard and feel respected, helping couples collaborate in a way that sets a positive tone for the marriage.

Disclaimer: Michael Aurit is a legal advisor to First and the owner of The Aurit Center. The links contained within this post are affiliate links and First receives a % of any packages purchased through these links.

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