Does the Air-Tight Pre-Nup Actually Exist?

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In the charming romantic comedy, "Intolerable Cruelty," George Clooney plays a lawyer who becomes famous for his hermetic pre-nuptial agreement, dubbed the "Massey Pre-nup," after his character in the film, Miles Massey. A divorce lawyer to the wealthy, fabulous, and comical, the Massy Pre-nup is sought after as the ultimate problem solver, the uncontestable contract, all in all, the billionaire's best friend. But remember, movies are fiction.

In reality, there is no single landmark air-tight pre-nuptial agreement. Some agreements may be better than others, and courts will look to whether or not the terms of the agreement were fair upon both execution and enforcement in many cases, making it difficult to accurately predict the results in any given divorce situation. While the "Massey Pre-nup" is an easily understood fairy tale, real-world pre-nuptial agreements are far more complex. Your best asset is a working understanding of these sorts of contracts.

Many of us think of pre-nuptial agreements with a combination of dread and reverence. You may be the party trying to get your spouse-to-be to sign the feared document, or you may be the less-moneyed romantic against whom the contract is to be enforced in the event of a Waterloo. Regardless of which role you play, you ought to know that a pre-nuptial agreement, in its most basic form, is a contract between two people that becomes effective upon marriage and enforceable upon divorce. The contracts are generally intended to protect the "have" party, so if you are the less fortunate member of the couple, be sure to be extra careful before you sign anything.

Pre-nuptial agreements are most useful in community property states, where any money earned by either party during the marriage would normally be split 50/50 upon divorce. The pre-nuptial agreement generally includes a provision by which the "have not" party agrees to waive the presumptive 50/50 split of property earned during the marriage.

In lieu of half of the community marital property, the "have" spouse usually agrees to give the "have not" spouse some fixed dollar amount, determined by whatever factors and conditions the couple and their attorneys may conceive of during the drafting process. It is worth noting that, up until rather recently, California had rather lax knowing consent requirements, meaning the party against whom the contract was to be enforced, the "have not" party, needed little counseling and advice in order for the contract to be valid under the law.

Any student of community property is familiar with what is perhaps the most famous of the knowing consent cases: the Sun Bonds story, a tragic drama in which Barry Bond's former wife was left with next to nothing, seemingly due to Barry's first class attorney in combination with Sun's third class English language skills and lack of sufficient representation. In the years since this case, California courts have created more stringent rules regarding knowing consent, now requiring, among other things, translation and independent representation where necessary. Both parties should have independent counsel and both parties should understand the document itself before signing.

Additionally, the terms of the agreement should not be unconscionable. In other words, the terms should not be so unreasonably unfair as to leave one party destitute. If a court determines that such tribulation is the undeniable result of the enforcement of the pre-nuptial agreement, it is not likely to enforce the contract. The time, energy, and legal fees tied up in the agreement will have been meaningless.

Of course, all written agreements are subject to the basic rules governing contract agreements between parties, so the agreement should meet the basic legal standards. But, beyond these simple guidelines, pre-nuptial agreements may be as complex or as simple as the parties and their representation desire. A court will always review the agreement when it becomes enforceable, and some agreements will hold up better in court than others. As to the hermetic Massey pre-nup, a remarkably well-drawn pre-marital agreement is indeed possible, but pre-martial agreements are case-by case documents and it is up to the lawyers and their clients to formulate a contract that best suits the circumstance at hand.