Are Your Unique Prenup Terms Actually Valid?
Video Transcript
Ray Hrdlicka – Host – Attorneys.Media
Hi, this is Ray Hrdlicka, your host for Attorneys.Media “In The News”, and in the news today, and yesterday, and probably tomorrow, is going to be the divorce between Nicole Kidman and Keith Urban.
Now, they’ve been married for 19 years, and I’ve read a couple of articles. And there are some allegations that there is a section within the prenuptial agreement that says Keith Urban’s going to get, whether or not this true or not is another issue.
But the article alleges that Keith Urban would get $600,000 for every year that he remains sober during the marriage. I read that and I go, well, that’s a really interesting requirement for a prenup.
So today we have Bill Leininger, an expert divorce mediation attorney with us from Sarasota, Florida. And I want to ask him that question. Bill, that’s a really strange requirement within the prenup.
And is that even enforceable? And then if you can, over your 40 plus years of, well, divorce work, and then of course, many years of divorce mediation, have you seen some really strange sections in prenups and some strange requirements there?
Bill Leininger – Divorce Mediation Attorney – Staten Island, NY and Sarasota FL
Well, I have. I sometimes get a kick when people, and sometimes the background for this might be they went online and they or they read a do-it-yourself book or something of that nature.
And I’ve had several where one of the parties wanted to micromanage their whole marital life. I mean, to the point where it provided the agreement, for example, that one of the spouses would be obligated to do all of the cooking.
Ray Hrdlicka – Host – Attorneys.Media
Oh, my God.
Bill Leininger – Divorce Mediation Attorney – Staten Island, NY and Sarasota FL
Yeah. And I’ve never seen one that got into, you know, how frequently they get marital relations or anything of that nature. But they will actually stay at least twice a week.
Both parties shall clean the residents and that type of thing. And they were trying to overcome that fear that their future spouse was going to be a lazy lump, who was going to have a he or she would have a can of beer watching the football game or something, while the other spouse, by default, then has to be on the hands and knees scrubbing the kitchen floor.
Those type of provisions are frequently unenforceable. The judge in court as the big cleaning judge in the sky, you know, it has to be reasonable.
But with regard to the one example you gave, well, the first question would come up is, is it against public policy in the state of Florida?
Well, I would propose that a provision that encourages a spouse to be sober would generally, I think most people would say, would be good for the marriage, as opposed to someone who’s peeing in their pants and drinking a 12-pack of beer every night and say, oh, shut up.
Watching what I want to watch or something of that nature.
So that would appear to me to be not against public policy. It’s good to have reasonable provisions that would encourage non-excessive or not drinking to excess.
The other question comes up is, now you mentioned a very large penalty of $600,000 per year, or reward in this case, depending upon who you look at it.
If the underlying numbers would not unreasonable, but I think about it, the wife has no inheritance, she has $100,000 in her money market fund, and she’s working for $30,000 a year, that’s not going to cut it.
But if you have someone who’s an actress, let’s say, or an actor, and they regularly make 20 or $30 million a year, if I was a judge in the state of Florida, knowing what we know about in this case, I would think that that would be fair and reasonable.
Of course, the danger is going to be enforceability.
I had a bit of custody case a few years ago, and my client was a nurse anesthetist, and she was a wonderful nurse anesthetist, and she had two small children.
The problem is fentanyl was a very great attraction, and she became hooked on fentanyl.
And she lost temporary custody of the children before she came to see me.
And I knew the judge for 30 years.
I had tremendous respect for the judge.
But for whatever reason, she got a bug up a behind.
And notwithstanding the fact that we agreed to have daily monitoring of her sobriety from drugs, it went so far that there were blood test and urine test results being electronically sent to the judge on a daily basis.
Ray Hrdlicka – Host – Attorneys.Media
Wow.
Bill Leininger – Divorce Mediation Attorney – Staten Island, NY and Sarasota FL
She was willing to agree to basically anything because her position was, I’m not taking drugs.
Whatever I have to do to win back my children, I will do.
So, my question is going to be the question of practical enforceability and definitions.
You know, what is having three beers.
Is that reasonable use or is that drinking to excess?
If someone has been found to be an alcoholic, let’s say they’re in the AA program, I’ve attended many open meetings with my clients at AA, and there’ll be certain rules that say that if you’re really an alcoholic, don’t have one because it’s going to lead to more.
That’s going to lead to more.
So, what happens if someone is sober for 11 and a half months, but their brother or sister came in for Christmas and they partied?
Is that person?
She may have enforceability problems in terms of definitions.
Yes.
Or is it going to be like my fentanyl with the nurse practitioner, nurse anesthetist, where there was an objective blood test?
Well, that may happen for drugs, from marijuana or heroin, but with alcohol, what’s the definition in the prenuptial agreement?
Right.
You see the practical problem.
Ray Hrdlicka – Host – Attorneys.Media
It’s almost impossible to do that because unless you’re with somebody, have that person monitored 24 hours a day, excluding sleeping, of course, you know, how do you enforce it?
You just can’t. The allegations, the possibility for the allegations to run amuck here are just, you know, numerous.
Bill Leininger – Divorce Mediation Attorney – Staten Island, NY and Sarasota FL
So, by putting certain provisions in the prenuptial, which was designed to A, have a safe relationship, obviously, especially if children were involved, you don’t want to see mom or dad on drugs or on alcohol.
So, I’m not saying the intention wasn’t good, but the practical situation, well, by doing the prenuptial, we won’t have a $50,000 or a $200,000 divorce, may not be the case because I’ve been trying to prove your case.
Additional Information:
- Customizing Your Prenup: Clauses You Might Not Have Considered – MatLawyers
- Legal Requirements For Prenuptial Agreements – GordenLaw, LLC
- Prenup Expiration: Does a Prenup Expire in California? – Moore Family Law Group
- How Courts Determine The Validity Of Prenuptial Agreements – LegalNature
- What Do Prenups Cover? Breaking Down Premarital Contracts – Lagorio Law
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