Obermayer Rebmann Maxwell & Hippel LLP

On February 19, 2021, Kim Kardashian West filed for divorce from her husband of 7 years, Kanye West in Los Angeles Superior Court.  Citing irreconcilable differences, the divorce papers filed by Kardashian West symbolized the end of one of Hollywood’s most notorious celebrity couples.  According to reports, there is a prenuptial agreement in place that neither party is contesting and the parties have already begun reaching a property settlement agreement in what sources are claiming is an “amicable” divorce process.  With 2021 having already been projected as a potential record year for weddings and new marriages after thousands of postponements caused by the COVID-19 pandemic, here are some lessons that all couples considering prenuptial agreements can use before walking down the aisle.

  1. You are in Control:

Prenuptial agreements are a contract between two individuals that determine their property rights in the event of a divorce. Pennsylvania divorce courts are courts of equity, meaning marital property is divided based on equity and fairness through a process called equitable distribution.  The distribution of property is dependent on the classification of separate property versus marital property. Separate property includes:

  • property acquired prior to the marriage,
  • gifts or inheritances received during the marriage, or
  • property acquired after separation. Marital property includes assets acquired during the marriage and any increase in value of separate property during the marriage unless such property is excluded by a prenuptial or postnuptial agreement. 

For individuals who want to delineate assets that are traditionally marital property as their separate property, a prenuptial agreement will give them the control they desire over the equitable distribution of such assets in a potential divorce that they would not otherwise have without a prenuptial or postnuptial agreement.  The prenuptial agreement can be as broad or as narrow as the couple wants, from including the extent of alimony or spousal support to including infidelity clauses, which have become popular among celebrity couples. For many couples, the ability to segregate separate assets in a prenuptial agreement will save them the time and expense that some celebrities such as Kelsey Grammar, Paul McCartney, and Mel Gibson were unable to avoid due to them not having a prenuptial agreement. 

  1. Timing is Everything:

When considering a prenup, the most important thing to remember is to make sure the prenup is signed before you and your spouse get married. Do not let you and your spouse be the couple that is racing to sign the prenuptial agreement minutes before the wedding.  This means, planning ahead to provide enough time for each individual to:

  • retain and consult separate attorneys,
  • negotiate the terms of the agreement,
  • draft the agreement, and
  • sign the agreement. A prenuptial agreement that is not signed prior to the parties’ wedding ceremony can no longer be a prenuptial agreement and must be modified to a postnuptial agreement.
  1. Enforceability:

One important issue that couples sometimes fall victim to is the enforceability of the prenuptial agreement.  Luckily for Kanye West and Kim Kardashian, neither party is contesting the enforceability of their prenuptial agreement, however, other couples are not always so lucky.  In Pennsylvania, a prenuptial agreement can be unenforceable if the party challenging its enforceability proves:

  • the party did not execute the agreement voluntarily, or
  • the party did not have adequate knowledge or fair and reasonable disclosures of the property or financial obligations of the other party and did not voluntarily or expressly waive their right to such disclosures. 

It is important that parties seeking a prenuptial agreement and seek advice from competent counsel to ensure that all necessary waivers or disclosures are made and that both parties sign the agreement voluntarily. 

  1. Provisions Relating to Child Custody and Child Support are Unenforceable:

While individuals often use their prenuptial agreement as a method to resolve as many potential issues as possible, provisions relating to child support and child custody are not enforceable under Pennsylvania law. In Pennsylvania, the child’s best interests are paramount to any custody determination. Similarly, the child, not the parent, possesses the right to child support.  In enforcing the prenuptial agreement, a court will disregard the custody provisions and instead make a determination based on the best interest of the child.   With regard to finances, however, some celebrity couples include prenup provisions that increase one spouse’s equitable distribution payment based on the number of children the couple has.  For example, in Jay-Z and Beyoncé’s prenuptial agreement, Beyoncé gets $5 million dollars for every child she gives birth to.   

In order to make sure your assets and rights are protected, it is ideal to seek competent counsel so that you are well informed on the requirements for an iron-clad prenuptial agreement.  When prepared correctly, prenuptial agreements can save you and your partner both time and money in the event of a divorce, leading to an amicable divorce process. 

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