Unfriend me and don’t tweet about us: Inside the Silicon Valley prenup

Silicon Valley millennials will talk about almost anything, especially when it comes to money. They'll tell you how much they pay in rent, how much funding their company just raised, and how quickly they hope to be fully vested. They'll describe their savings plans, their angel investments, and their predictions on who will be the next unicorn, sometimes with the passion and spirit other people reserve for presidential candidates or their hometown football team.

But ask them about their prenups? Silence.

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I asked more than 20 young Silicon Valley types to talk with me about their personal finances in the hopes that one of them would tell me about their prenup. Not a single one of them would.

But they're talking to someone about prenups: the lawyers they're hiring to draft them.

Family law specialists in San Francisco and Silicon Valley say millennials in tech are seeking prenups at much higher rates than their elders did — and that they're using them to prevent potential post-marital problems that their predecessors never had to consider.

"Their views on money are different from their parents, and their views on marriage are different," said Monica Mazzei, a San Francisco-based family law attorney who represents a number of Silicon Valley clients. "I think with this generation [a prenup] is almost a given."

Mazzei began her legal career in Beverly Hills, where she handled cases for Hollywood celebrities, NBA players and the occasional Persian rug dealer. She learned a lot in the process — the intricacies of film deals, the work involved in restoring a classic Ferrari — but she said it was nothing compared to what she does now.

"Beverly Hills was so interesting," Mazzei told me. "But the net worth up here far exceeds celebrities'. Obviously, there's a huge range of celebrity, but a celebrity is worth, you know, $10 or $20 million. Up here, we are dealing in the hundreds of millions."

While some of Mazzei's tech clients are worth nine figures, they still roll up to the firm in Priuses and shuffle into her office in jeans, depositing their backpacks on the ground. "I work in an area where people are really just starting off with an idea," she says. "It either could be a really big flop, or the person could be the next Steve Jobs. The ability to create wealth is pretty astonishing."

So is the ability to lose it.

At the Oscars earlier this month, Chris Rock joked that Jeff Bezos has so much money that "he got divorced and he's still the richest man in the world." Bezos's divorce settlement left his ex-wife, MacKenzie, with $38 billion worth of Amazon stock — enough to make her the third-richest woman in the world. Another cautionary tale, closer to home: the case of Scott Hassan, who wrote some of the original code for Google and founded a telepresence robot called Beam. He's currently in the fifth year of divorce proceedings from his wife, Allison Huynh; in December, she filed for an injunction to block the sale of his company, which she calls a "tainted, self-dealing transaction."

It's a messy, public, embarrassing process, and one that more and more young entrepreneurs are seeking to avoid — especially those in budding romances with partners who aren't as rich as they are. For now, Mazzei said, that's mostly men. "I have to say unfortunately, I'm still seeing more of the male clients coming in with the wealth," she said. "However, over the years it's gradually progressing. I get more and more female clients, which is encouraging, but it's not close to 50/50 yet."

The other thing Mazzei sees changing: Her clients are coming to her earlier in their relationships — in many cases, before they're even engaged.

Couples are requiring that, in the event of a break up, each party be removed from the other's Facebook and Instagram pages. No one is allowed to tweet.

"In the last four years, I've gotten people coming in super early," Mazzei says. "They don't even have a wedding date or they haven't even proposed. They're approaching it very businesslike. The stigma of living together has gone by the wayside."

Some couples are signing agreements even before getting to that stage. Pre-prenup "cohabitation agreements" typically focus on what, if anything, would be considered community property if the couple breaks up. But Mazzei says that more and more of her clients are including NDA policies in their prenups. And couples under the age of 40 are beginning to add specific requirements and rules for social media posting in the event of a breakup. They're requiring that, in the event of a break up, each party be removed from the other's Facebook and Instagram pages. No one is allowed to tweet.

Those parts of the agreements are relatively straightforward: The rules are clear, and if either party violates them, he or she typically owes the other party money. But other parts of a typical Silicon Valley prenup can be extraordinarily complicated.

"Silicon Valley is a unique place," said Natalie T. Deprile, a family law attorney in San Jose, "not only because there is a lot of money here, but because people can become very wealthy, very fast because of their job."

The flood of new money flowing through Silicon Valley has played a huge role in the rise of prenups, Deprile said. Where she used to see more people getting prenups to protect an inheritance or a trust, they're now getting them to protect their own earnings.

Calculating — then splitting up — wealth can be difficult because so much of what the tech industry considers valuable doesn't actually exist.

"Fifteen or sixteen years ago, the prenups I was working on were either for people on their second or third marriage," Mazzei said. "Or it was family money they were wanting to protect." That's not the case with most of her tech clients; she said many of them are in their 30s, about to be married for the first time, and nervous about protecting what they've accumulated.

The wealth of the "working class" in Silicon Valley can be overstated; adjusted for inflation, nine out of 10 workers in Silicon Valley make less than they did in 1997. But the extreme wealth is in fact extreme: As of 2018, there were 74 billionaires living in Silicon Valley. Family law attorney Gianna M. Assereto said that calculating — then splitting up — their wealth can be difficult because so much of what the tech industry considers valuable doesn't actually exist. It's easy enough to split a bank account or a car or even real estate. But while a house in Menlo Park is certainly worth a lot, it's nothing compared to the intangibles: stock options, the potential value of a pre-IPO company, the long-tail upside of a hedge fund or an angel investment.

"Assets up here are different and what people value up here [is] different," Mazzei said. "They put a lot of value into questions of like, 'Is this stock going to be worth a lot of money one day?' or, 'Is it worth fighting for these shares because this is going to be the next unicorn?'"

Part of why prenuptial agreements have become so common is because divorce law is much clearer now than it was 30 years ago. For that, Deprile says, you can thank another famous product of the Bay Area: Barry Bonds.

In 1988, the future San Francisco Giants All-Star outfielder asked his fiancee to sign a prenup. At the time, his MLB salary was worth a little over $100,000. She signed it. But when they divorced six years later, Bonds had just signed a then record-breaking free-agent contract of $43.75 million. His ex-wife petitioned the prenup, and the case made it all the way to the California Supreme Court. Because of the court's ruling, prenups now have basic rules for signing: Each spouse must be represented by their own attorney; there must be a seven-day waiting period before signing; and if one party waives the right to representation, they must write a summary of the agreement to prove they understand what they signed.

On top of that, the California Court of Appeals saw two major cases in the 1980s — Marriage of Hug (1984) and Marriage of Nelson (1986) — that divorce lawyers rely on to determine how much of a stock option is community property. Those two court cases literally set up formulas to determine community property shares if the options were granted to attract an employee to a job (Hug) or as compensation for future performance (Nelson.)

But any good family lawyer knows that in a divorce, either party can try to claim not only the profits of his or her partner's work product created during the marriage, but also the earnings that follow the divorce. "A lot of what is in Silicon Valley is venture funds and hedge funds," Assereto said. "You have individuals who have gained a reputation, and the asset they are using is their own professional goodwill."

Assereto has had cases where a couple got married at 20 years old without a prenup, then got divorced at 50. If, at 55, one member decides to establish a new fund and nab new investors, the other party of the dissolved marriage could claim that it was their joint effort during the marriage that created the goodwill that allowed for those investments, and therefore claim part of fund's future profit as community property that must be shared.

A prenup isn't a perfect shield against all of that, but lawyers and financial advisers say that many tech millennials are looking for whatever protections they can get. Because they're getting married later, and staying in the workforce longer, it's easier for them to think about money and marriage as two business decisions that have to be made intelligently. "If you have assets and have been working hard to save for 10 years, obviously your relationship to your money is going to be different than at 25 when you're living paycheck to paycheck," said Emily Green, the top financial adviser at Ellevest.

She said that the millennials she works with have much more open relationships with their money than their parents did. They are more willing to talk to one another about debt and their financial situation. "I think there used to be a lot more relationships where one spouse is taking care of the money and the other might not even know where the money is," Green said. "I really don't see that much anymore."

Still, she said, the decision to seek and sign a prenup is one that each couple has to make for itself.

"I think there are still a lot of people who don't get them, frankly. It's their marriage. We can tell them what we think they should be doing, but we can't make them do anything," Green said. But for her clients, all of whom are women with net worths of a $1 million or more, prenups are more common than not.

"I think the fact that women recognize that they want to protect their money can be beneficial even for a woman who is staying at home," she said. "I think the world has changed a little bit."