Like an episode of Yellowstone, Kevin Costner and his estranged wife Christine Baumgartner are in court fighting over the validity and enforceability of the kind of agreements many celebrities sign before their marriage: prenups.

“We’re enemies now”

Costner and Baumgartner have already battled it out over custody and living arrangements with Baumgartner being forced to move out of the family home by July 31. Now the issue is the validity of the prenup. Although not reported in the Costner divorce, some people insist on putting unique clauses in their agreements.

Some couples have ‘anti-cheating’ clauses for instance. An anti-cheating clause tries to penalize a spouse for having an affair. There are also requests for clauses such as the one requiring that a spouse have sex on demand, or one in which a spouse must maintain a certain weight to remain in compliance with the prenup.

These sort of morality and other provisions are not really enforceable and may even violate public policy. Some of the things you can do to make sure your prenup is enforceable is to make sure that the agreement is fully negotiated, both parties have an opportunity to hire a lawyer, and that full financial disclosure is exchanged.

Florida Prenuptial Agreements

I’ve written about prenuptial agreements before. Prenuptial agreements are not just for cowboys on the Yellowstone. Anyone who brings personal or business assets into their marriage can benefit from a prenuptial agreement. Prenups are important to have in place before a married couple starts investing in businesses, properties, and other investments.

But prenups can be challenged in court too. Florida has both case law and a statute to help lawyers, judges, and the parties determine if a prenuptial agreement is enforceable. For example, Florida adopted the Uniform Premarital Agreement Act. The UPAA is a statute that requires that all premarital agreements be in writing and signed by both parties. It is enforceable without consideration other than the marriage itself.

Couples wanting to sign a prenup can enter into an agreement with respect to their rights and obligations in any of their property. Whenever and wherever property was acquired or where it is located; couples can control their right to buy, sell, use, transfer, or otherwise manage and control their property if they separate, divorce, or die.

When ruling on the validity of a prenup, Florida courts must consider things such as fraud, duress, coercion, in addition to the unfairness of the agreement, and whether there was any financial disclosure. While prenuptial agreements may be challenged in court, we will have to wait and see if the court will invalidate Costner’s prenuptial agreement.

“You are the trailer park. I’m the tornado”

A prenup also has the unintended consequence of forcing people to talk about money before they start their marriage. It is difficult to have conversations about ‘what if’ we break up or one of us dies during marriage”, so couples tend to avoid discussing important questions. Only after people are married do spouses learn each other’s financial expectations. A prenup negotiation gets all that into the open up front.

Divorce attorneys add that some people might not marry after understanding their partner’s financial expectations – like sharing property owned before the marriage equally, and more. Jessica Simpson, who did not sign a premarital agreement when marrying Nick Lachey, later regretted her decision:

“I wish I would have signed a prenup and that’s the funny thing is that Nick wanted me to sign a prenup, but I was, like, so offended. I was like, ‘We’re going to be together for the rest of our lives. We’re saying our vows to God and in front of all of our family and friends. Like, this never gonna end.’ And, we didn’t sign a prenup.”

The reasons for signing a premarital agreement can vary, from a strong distrust that marriage can truly last a lifetime, to the need to control a partner, or simply good planning for the protection of both spouses. Prenups can be complex too. However, prenups can also be a major advantage when it comes to keeping lives in order in the event of divorce.

The Fox article is here.