Prenups Were Invented to Protect Women

It's Monday, August third. Joseph Tsai and Clara Wu Tsai, who own the Brooklyn Nets and the New York Liberty, announced their divorce last week after nearly 30 years of marriage. Tsai co-founded Alibaba alongside Jack Ma, which became one of the largest tech companies in the world, and his net worth sits somewhere between $9.5 and $12.5 billion depending on who's counting. and the statement said the split is amicable and won't affect their ownership of the teams. When I read that, the first thing I wondered was how a divorce works when you're talking about billions of dollars in assets, sports franchises, and shares in one of the largest tech companies in the world. Which led me to prenups, which I always assumed were a modern invention designed to protect rich men from losing their money in divorce. That assumption is wrong in almost every way. Prenups are over 2,000 years old, they were originally created to protect women, and in the United States they were actually illegal for most of the country's history because courts thought they would encourage people to get divorced. The earliest known prenuptial agreements come from ancient Egypt, around 465 BC, where women had equal legal and property rights to men and marital contracts were written on papyrus to ensure the wife would be financially provided for if the marriage ended or the husband died. Around the same period, ancient Hebrew law established the ketubah (keh-TOO-bah), which translates to "it is written" and is one of the first legal documents in history that granted financial rights specifically to women within a marriage. The ketubah detailed property division, asset protection, and inheritance rights, and it ensured that a wife inherited her husband's property if he died. It's still used in Jewish weddings today.

The pattern across ancient cultures was consistent: prenuptial agreements existed to protect the person with less power in the marriage, which for most of human history was the wife. Dowry agreements in medieval Europe served a similar function, establishing what the wife would retain if the marriage dissolved. The entire concept was built around making sure women weren't left with nothing, which is almost exactly the opposite of how most people think about prenups in 2026, where the popular image is a wealthy man sliding a document across the table to protect his assets from his future wife. The tool that was designed to give women financial security became, in the public imagination, a tool used against them. Prenuptial agreements were not enforceable in the United States until the 1970s. For most of American legal history, courts viewed prenups as contrary to public policy because they believed that allowing couples to plan for divorce would undermine the institution of marriage and encourage people to leave. The logic was that if you could protect your assets in advance, you'd have less incentive to stay and work things out, and marriage was considered a permanent arrangement that the legal system had an interest in preserving.

The turning point came in 1972 with a Florida case called Posner v. Posner, where the Florida Supreme Court ruled that prenuptial agreements were valid, enforceable contracts between two consenting adults. That decision broke the dam, and over the next decade other states began recognizing prenups as legitimate. In 1983, the National Conference of Commissioners on Uniform State Laws drafted the Uniform Premarital Agreement Act, which provided a standardized framework for how prenups should be created and enforced. Not every state adopted it exactly, but it established the basic principles that most states follow today.

Even now, prenups are far less bulletproof than most people assume. A judge can throw one out if it was signed under duress, which includes presenting it to your partner the night before the wedding with no time to review it. A judge can throw it out if one or both parties didn't have independent legal counsel when they signed. A judge can throw it out if the terms are "unconscionable," meaning so one-sided that no reasonable person would have agreed to them voluntarily. And a judge can throw it out if one party didn't fully disclose their assets before signing, because you can't agree to divide something fairly if you don't know what exists. A prenup that looks ironclad on paper can fall apart in court if any of those conditions are met, which means the document is really only as strong as the process that produced it. When a marriage without a prenup ends in divorce, the rules depend almost entirely on which state you live in, and the differences between states are dramatic.

Nine states, including California, Texas, Washington, and Arizona, use community property rules, which means that virtually everything acquired during the marriage is owned equally by both spouses regardless of who earned it. If one spouse built a billion-dollar company during the marriage while the other stayed home, the company is a community asset and gets split 50/50. This is why MacKenzie Scott received roughly $38 billion in her divorce from Jeff Bezos: Washington is a community property state, Amazon was built during their marriage, and the law doesn't care who wrote the code or ran the meetings. The asset was created during the partnership, so it belongs to both partners equally.

The other 41 states use equitable distribution, which sounds like 50/50 but isn't. Equitable means "fair," and a judge decides what's fair based on factors like the length of the marriage, each spouse's earning capacity, contributions to the household including non-financial ones like raising children, and the standard of living established during the marriage. The split could be 50/50, 60/40, 70/30, or any other ratio the judge considers reasonable given the circumstances.

And here's the part that surprised me: none of this is gendered. The law doesn't distinguish between husbands and wives. If the woman is the higher earner, the man can receive alimony, community property, or equitable distribution just the same. The assumption that divorce settlements always flow from the man to the woman is a cultural perception, not a legal reality. It was more often true historically because men were more often the primary earners, but as that dynamic has shifted, the legal outcomes have followed. A woman who earns more than her husband and gets divorced in California will see her assets split 50/50 the same way Bezos did. The law follows the money, not the gender. The thing that flipped how I think about prenups is that a legal tool invented over 2,000 years ago to protect women from being left with nothing ended up being perceived as something rich men use to protect themselves from women. The origin and the reputation are almost perfect opposites. And in the US, the whole concept was illegal until 52 years ago because the government thought planning for divorce would make people more likely to get one, which is a strange position for a legal system that also makes divorce readily available. The Tsais are going through their split with billions on the table, and whatever arrangement they have, the law underneath it is a lot less straightforward than most people assume.

Stay informed, stay curious, and we'll see you tomorrow.