Peaceful Divorce

The Good, The Bad and The Ugly: Prenuptial Agreements

Over the last several years I have seen a number of clients who are entering into their divorces with prenuptial agreements already in place.

As I thought about couples considering what to include in their prenuptial agreements, I remembered an article from many years ago published in The New York Times by Jan Hoffman called “THE RICH: How They Keep It.” Here are some of the more interesting forms of prenuptial agreements Hoffman laid out in her article:

The Renoir Clause: Typically when the wealthy scion intends to wed, the prenup tries to block the new in-laws from the trust accounts. But now dynasties are also fretting about the family heirlooms. So prenups are insuring that art collections, stables, season opera tickets and third homes remain with the original family, "or at least the wife will agree that her mother won't be allowed to visit the country houses," says Eleanor Alter, a New York lawyer who represented Mia Farrow in her custody fight with Woody Allen.

The Pet Clause: "I did one prenup with nine pages just on the joint-custody issue of their Dandie Dinmont terrier," Alter recalls. "One party had primary custody, but the other had visitation rights. If the dog was bred, the one without custody had first pick of the litter; and then there was the question of what to do when the primary custodian went away on weekends -- kennel or temporary transfer of custody?"

The Once-and-Future-Children Clause: As more people try marriage a second or third time, they are trying to predetermine custody and support of their children, including those yet to be conceived. Particularly when the groom is wealthier and decades older than the bride, he may insist he does not want more children and will not spend a nickel on them post-divorce. But these clauses aren't enforceable: The right to conceive cannot be contracted away, and a judge always has final say over child support.

The Disintegration Clause: This is becoming the poorer spouse's biggest cudgel. "A wife should make sure that after five years, the prenup just goes away," advises Norman M. Sheresky, a prominent New York matrimonial lawyer. If the marriage founders after that deadline, she might be entitled to a more lucrative divorce settlement.

The Cost-of-Challenging-the-Prenup Clause: An increasingly typical clause might include the following formula: If a marriage lasts a decade before failing, the wife is assured $10 million, but if she challenges the prenup during divorce proceedings and loses, she gets only $5 million (minus his legal fees).

So what good stories do you have on prenuptial or postnuptial agreements? Let us hear them.

To read Jan Hoffman’s full article, click here.  

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