The big news this morning was Madonna and Guy Ritchie’s $92 million divorce settlement. With such a large payout, it makes you wonder whether there was a prenuptial agreement in place (if you type that question into Google, you get differing responses), and if there was, if it was disregarded throughout the marriage.
In any event, prenups are not just for celebrities. A common type of prenuptial agreement is one where there is a family business, trust or generally a lot of money and property on one side that the parents do not want to get into the hands of the new spouse, no matter what. In fact, I blogged yesterday on a new reported case where that was the issue. To see that post, click here. Sometimes those types of prenups are difficult to negotiate because the spouse with the family money may want to be more generous to the new spouse than his/her family is willing to be. I have seen this cause great distress on the eve of a wedding.
Another common theme for a prenuptial agreement is when people get remarried later in life (due to divorce or death of a prior spouse) and they have children who they want to pass their assets to. Sometimes, both prospective spouses are in this situation. These are typically easier to negotiate. The bigger issues in these cases are how will bills be paid, whether there will ever be any joint assets created, and sometimes medical issues – does the spouse or the children make decisions.
I was recently involved in one of these later in life pre-nups where a big issue was whether the children of an incapacitated spouse could bring a suit for divorce on behalf of their parent. This was an issue because the non-monied spouse received something different at the other spouse’s death vs. divorce. Depending on where the parties were in their marriage, a maliciously motivated or more like self interested child could seemingly seek to pursue a divorce. We had to craft language to protect the parties in this event.
Another circumstance where I have occasionally seen a prenuptial agreement, but questioned from the perspective of why the non-monied spouse would ever sign or go through with the marriage. These are the cases where the parties are reasonably young, where one has more than the other (but not substantially so) or a premarital business which is not particularly successful and the less advantaged spouse is being asked to waive off on virtually all of the assets derived and/or income earned during the marriage, and perhaps also being to waive alimony too despite a clear disparity or soon to be disparity in income. In fact, the parties plan to have children and the plan was that the non-monied spouse would be a stay at home parent. In one of these cases, the agreement was so unconscionable in my eyes, that I would not continue the representation. I believe that the client signed anyway. If there ever is a divorce, I suspect that she will either be very sorry she signed the agreement or will be in for a very expensive legal battle regarding the enforceability of the agreement.
For more information about prenuptial agreements in these or other circumstances, do not hesitate to contact any of the lawyers in Fox Rothschild’s family law group.