Prenuptial agreement, or prenups, have become increasingly popular over the past few years, and using AI to draft them is particularly trendy. But AI-generated prenups are risky, and often create the very problems and expenses they’re meant to prevent.
Prenups aren’t new. Financial marriage contracts have been around since ancient Egypt, and the reason haven’t changed all that much: to offer protection in case of separation, partner debt or death, preserve inheritance rights and family wealth, etc.
Broadly, a prenup preserves separate property status; ensures the appreciation of separate property; protects interest and income derived from separate property; protects the estates, especially if either of the partners had children from a prior relationship; and preserves or establishes debt issues.
Because assets and wealth take time to build up, prenups are still often thought of as a one-sided deal in which the wealthier partner—older, maybe from a rich family, usually the man—is looking to protect their interests. But that’s not the statistic, especially with couples getting married later, and it misses the point of a prenup, which is thinking ahead.
Young couples today are more savvy to this, accounting for a sharp rise in prenups—including between couples who don’t have all that much to divvy up.
According to a 2023 Harris-Axios poll, 47% of millennial and 41% of Gen Z engaged or married couples in the US have a prenup, compared to 20% of married couples overall. (The overall number has also shot up from 3% in 2010, according to the poll.) It’s been the ongoing subject of news pieces and op-eds in the media and legal publications since.
Take these figures with a grain of salt. They’re impossible to verify, since prenups are usually filed in court only if the marriage dissolves. And there’s the overlooked obvious, that younger people naturally get married in higher numbers than older people.
But still, prenups (and postnups) are unquestionably rising in popularity, and I can attest that we’re seeing a lot more of them at the firm.
The issue is how many clients come in with pre-drafted prenups, even signed already, made with AI, and how those create legal Gordian Knots that I then need to take my sword to.
Whether done with AI apps or legal websites (which are generally AI-based themselves), the trendy use of AI to create prenups creates a number of problems, first being that the AI’s stipulations often have no bearing on or even conflict with the law.
To give you just a couple of examples that I’ve seen frequently over the last 2–3 years:
Fidelity clauses. It’s an AI favorite, apparently, suggesting financial penalties—a cash fine, reduced alimony, forfeiture of specific assets, or other waived benefit—in case of an extramarital affair.
Legally, it’s tenuous at best. New York is a no-fault divorce state, meaning the courts don’t factor infidelity in divorce trials or settlements. Any clause to the contrary likely won’t be enforceable.
Leaving-the-workplace trigger. It activates if one spouse decides to stay home and give up their career, either requiring the working spouse to provide additional support or, alternatively, penalize the unemployed spouse with lower support or share of assets.
While some specifications regarding contribution can be included in a prenup, they still have to answer questions such as, what if the spouse is fired rather than leaves the workplace voluntarily? What if they become incapacitated? Or what if they decide to take advantage and not have to work? There are many other questions to consider, each with its own legal implications, and AI, even if it gets the answers right—which it doesn’t reliably—doesn’t always ask the right ones.
These and other issues with AI prenups don’t just create a legal mess, they can strain the couple’s relationship because points of contention, which have been argued and comprised over, now have to be renegotiated all over again. And all before a wedding, marring the excitement and bliss.
A good lawyer helps prevent all that by asking the right questions, tailoring advice for the specific client’s best interests, and drafting a clear-eyed, comprehensive, legally viable prenup.
So yes, going online is convenient. But planning your financial future (and inextricably your future health care and security) shouldn’t be approached like a Grubhub dinner order.
The bottom line here is prudence over hastiness—just like an actual prenup. AI may or may not get there some day, but for now, any legal planning, let alone a binding contract, should be guided by a lawyer. IRL.
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