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Prenup a Focus in Schwarzenegger/Shriver Marital Dissolution

We have remarked in previous posts that, notwithstanding the entertainment value some people might derive from celebrity tales that occasionally dominate media headlines for a time, those stories can be widely instructive regarding family matters and other issues.

Consider the recent Arnold Schwarzenegger and Maria Shriver marital split, for instance. One matter that has many family law experts interested is whether the couple executed a prenuptial agreement when they married 25 years ago.

There is actually considerable conjecture not only over the existence of such an agreement, but additionally, what it might say, given that both Schwarzenegger and Shriver were already quite wealthy when they tied the knot. With many celebrity couples, the respective assets and income of the partners are highly disproportionate, with one of them seeking to safeguard wealth from the other in the event of a marital dissolution. In the Schwarzenegger/Shriver case, that was unlikely ever to be an intent of either party.

There is discussion, too, whether an agreement -- again, if one even exists -- contains, like some prenups do, a provision that calls for the contract's termination after a stated period, which might have already lapsed.

And then there is the question of whether a judge would even enforce such an agreement, regardless of what it says. Although it is certainly established law to reflect the wishes of parties who execute a legal agreement, judges often find ways to thwart that intent. With prenuptial agreements, they have sometimes voided them outright for contractual terms found to be unconscionable -- that is, against public policy -- because they are so onerously one sided in favor of one of the parties. At one time, it was argued that marriages were created by the state and that instruments such as prenups unlawfully altered them through private agreements.

Parties strongly intent on seeing all the provisions within their premarital agreement faithfully adhered to are advised to use the services of an experienced family law attorney with strong experience in drafting prenups. All the language within a prenup needs to be unambiguous and the contract needs to be bulletproof to withstand exacting judicial scrutiny.

Related Resource: Slate, "Conan the Divorcer" May 18, 2011

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