Does the air-tight pre-nup actually exist?

There is no single landmark air-tight pre-nuptial agreement. So, what is it you need to look for to best protect yourself? Read more to find out how you can protect your property rights.

by Corie Lynn Rosen
updated May 11, 2023 ·  3min read

In the charming romantic comedy, "Intolerable Cruelty," George Clooney plays a lawyer who becomes famous for his hermetic pre-nuptial agreement, dubbed the "Massey Prenup," after his character in the film, Miles Massey. In the film, Massy Prenup 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 predict the results in any given divorce situation accurately.

While the "Massey Prenup" 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.

Who prenups are for

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.

When prenups are effective

Prenuptial 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.

Invalid or valid? It depends

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 for the contract 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 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.

A standard of fairness

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 pre-nuptial agreement's enforcement, 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. 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 prenup, a remarkably well-drawn pre-marital agreement is possible, but pre-marital agreements are case-by-case documents. It is up to the lawyers their clients to formulate a contract that best suits the circumstance at hand.

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About the Author

Corie Lynn Rosen

Corie Rosen is a fiction writer and poet. Her work has been nominated for the National Book Award, for the Pushcart Priz… Read more

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of the author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.