Learning from Kevin Costner: Rising Importance of Prenups
By Snyder Sarno D'Aniello Maceri da Costa LLC on June 13, 2023
Costner learned a lesson, to an estimated sum of $80 million, from his first divorce in 1994.1 Upon entering his marriage with Christine Baumgarnter, Costner signed a prenuptial agreement in case they split. This time, instead of losing half of what he owned, he instead will only be losing that which was agreed upon long before the relationship became rocky. While specific details of the agreement have not been released, a few terms are known.
- A required vacancy clause, giving Baumgartner a time after which she must be off any property owned by Costner; and
- Listing of separate property, whether acquired before, during, or after the date of separation.1
While no other information regarding what the prenuptial agreement contains has been revealed, these two terms show some of how meticulous you can get in the drafting of a prenup. These agreements are typically enforced by a court and allow for everyone to better understand where they will land financially should they split.
Those familiar with Costner’s prenup state that it is “iron clad”. This means, absent a court decision voiding it, Costner knew his obligations long before the divorce was imminent. Costner’s conflicting experiences in divorce highlight the importance of having a plan prior to the dissolution of a marriage. New Jersey, unlike California, is an “equitable distribution” state, meaning property is not required to be split 50/50. Instead, the court will distribute marital property in a manner considered fair, absent an agreement otherwise. As such, it is imperative to protect yourself prior to marrying.
Prenuptial agreements are the most common way to protect your assets, as well as yourself, should a marriage end in divorce. These agreements allow for individuals to determine the allocation of assets as well as other obligations of each party should they divorce. Additionally, property and assets acquired during the marriage can also be allocated separately from those owned individually prior to the marriage.
Common Terms in New Jersey Prenuptial Agreements
- The rights and obligations of each spouse when it comes to property;
- The right to manage and control property;
- How property will be distributed at divorce, death, or the occurrence (or non-occurrence) of any other event;
- The establishment or elimination of spousal support (alimony);
- The making of an arrangement (such as a will or trust) to carry out the provision of the agreement;
- The ownership rights in and distribution of the death benefit from a life insurance policy;
- The choice of law governing the construction of the agreement; and/or
- Any other matter, such as personal rights and obligations, as long as it doesn’t violate public policy.2
When considering whether a prenuptial agreement violates public policy, the New Jersey Courts have stated so long as the following provisions are not included typically a prenup will be enforceable.
Terms Which Will Render Prenup Unenforceable
- Allocation of parenting time
- Allocation of custody
- Allocation of child support 3
With the popularity of prenuptial agreements growing, their usage is at 15% compared to 3% in 2010. It is clear prenups are no longer utilized solely by the wealthy. In 2022, an estimated 40% of newlywed and engaged couples between the ages of 18 and 34 negotiated a prenuptial agreement. This is much higher than the 13% seen in those married between the ages of 45-54, and even higher than the less than 5% usage of prenuptial agreements in those 55 or over.4
Marriage, while something to celebrate, realistically ends in divorce 40-50% of the time.5 By considering the allocation of financial, property, and other assets before dissolution of the relationship both parties are given the opportunity to ensure should they split, they both will land on their feet.
While the time leading up to a wedding is exciting, and a prenup may be the last thought on your mind, it is better to plan for the worst and protect yourself. As you plan your big day, call Snyder Sarno D’Aniello Maceri and Da Costa LLC to discuss your options and draft your prenuptial agreement. We will happily discuss what you have, would like to protect, and how we can best accomplish those goals for you.
If you have any questions regarding your New Jersey divorce or prenuptial agreements, please contact the skilled matrimonial attorneys at Snyder Sarno D’Aniello Maceri & da Costa LLC. Call us today at (973) 274-5200.
1 Sager, J. (2023, May 9). What We Know About Kevin Costner and Wife Christine Baumgartner’s Divorce (and Prenup). parade.com. https://parade.com/celebrities/kevin-costner-wife-christine-baumgartner-divorce-prenup#:~:text=Do%20Kevin%20Costner%20and%20Christine%20Baumgartner%20have%20a%20prenup%3F,legally%20speaking%2C%20a%20premarital%20agreement.
2 N.J.S.A. 37:2-34
3 N.J.S.A. 37:2-35
4 Waters, Michael. “Prenups Aren’t Just for Rich People Anymore.” Newyorker.Com, 12 July 2022, https://www.newyorker.com/news/us-journal/prenups-arent-just-for-rich-people-anymore. Accessed 4 June 2023.
5 Bieber, Christy. “Revealing Divorce Statistics in 2023.” Forbes, 4 May 2023, www.forbes.com/advisor/legal/divorce/divorce-statistics/.
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