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I’ll Love You Forever (But Sign This Just in Case)

The iconic 2005 song “Gold Digger” by Kanye West was always an easy listen, but beneath the veneer of a catchy beat and Jamie Foxx’s top-notch impression of Ray Charles, there lies tried and true marital advice: there is inherent power in a prenuptial or antenuptial agreement.

Almost one decade after the song’s release, West heeded his own words and signed such an agreement prior to his marriage to Kim Kardashian. This was not particularly surprising, as Kardashian’s father was an attorney of the highest profile, and her own marriage to Kris Humphries before West lasted a whopping 72 days. Regardless of who put the words to paper, a prenuptial agreement was signed, and both Kim and Kanye are reported to not be contesting it as they move for divorce and split their not-inconsiderable assets.

Are prenups just for the rich and famous, exclusively? Not at all.

Not even the richest of the rich have them. Jeff Bezos is perhaps the starkest example. When Jeffrey and his lovely wife MacKenzie Scott got married, it was widely reported that the couple did not sign a prenup. Around the time the divorce was filed, Jeff was worth nearly $157 billion. The couple lived in Washington, which is a traditional community-property state, meaning all assets that are acquired during the marriage (i.e. community-property) are to be divided equally. That might be the biggest check Mr. Bezos ever writes in his life, and in the dissolution of their marriage MacKenzie became a billionaire in her own right.

There must be something in the water in the Pacific Northwest, as another couple, Bill and Melinda Gates, are also filing for divorce in Washington. It is reported that they had a prenup, but allegedly not for what you might imagine. According to some sources, the prenup contained no provisions with regard to finances or how things would be divided should that marriage suffer from irreconcilable differences.

Allegedly, the only real provision in their prenup was a clause that allowed Bill to spend one guilt-free weekend with his ex, Ann Winblad, who he broke up with when he began dating Melinda. Many credit Winblad as being the creator and builder of Silicon Valley as we know it, so the connection between Gates and his ex was likely more than skin-deep. Other sources state that there is no evidence of an official signed prenup between the Gates, so the facts are in dispute until they are confirmed by the couple.

The question becomes then: Do I need a prenup? Depending on what you hope to accomplish, you just might. However, much of what can be taken care of by use of a prenuptial or antenuptial agreement, can easily be handled with proper planning and asset allocation and placement prior to saying any “I dos.”

What about my rental property?

A common question that we are asked is “Will my rental property that I had prior to marriage be divided during divorce?” The answer to that is rather complicated so we look at the following:

  • How did you finance it during the marriage?
  • Do you still have it?
  • If you no longer have that rental property what happened to the proceeds from its sale?

Could you hire two attorneys (one to draft the prenup for you, and one who is your future-spouse’s attorney to review the document and advise them accordingly) to get a prenup to make sure it is yours? Absolutely.

Let us not forget the fees associated with making a full and complete disclosure of all assets held, without which the prenup fails on its face. However, if you just simply ensure that it remains separate property, which really isn’t that difficult to do, and not commingle it or the proceeds of it, you can reach the same result.

That is true with more than just your rental property, and extends to all real property, most personal property, familial inheritances, and the vast majority of bank, credit union, investment and retirement accounts. Depending on the jurisdiction where you say “I do,” or more realistically where you live when you say decide to split up, determines whether or not the spouse could still claim a small interest stemming from an increase in value during the marriage.

It is important to hire an attorney to help you set everything up to protect your personal property, instead of spending money on multiple attorneys to create documents that serve no real purpose.

The Trifecta: Alimony, Spousal Support, Maintenance

Returning to our analysis of “Gold Digger,” it is understood that Kanye wasn’t really talking about real property, and rather was referring to paying someone money. This takes on several different names, which are essentially used interchangeably: alimony, spousal support, and maintenance.

That is why I should have a prenup then right, to avoid paying maintenance? I shouldn’t have to pay for their bad habits and vacations, you might ask.

Only one guarantee exists in avoiding the paying of maintenance: Move to Texas. The Lone Star State doesn’t have such words in their familial court’s vocabulary, and no such word is codified in statute, either. In Colorado, where we practice, this is certainly not the case, and it is for this reason I see and hear about prenups on a regular basis and assist individuals in drafting them in a way that offers them peace of mind, whatever the state of their marriage.

If avoiding maintenance and paying attorney’s fees of your ex-spouse is your main concern, you might as well put your wallet away. Sure, many prenup have come across my desk with provisions relating to both of those hot topics. Realistically, these documents don’t hold water when it comes to those specifics as the statutes are pretty clear.

Pursuant to C.R.S. § 14-2-309(5):

“A premarital agreement or marital agreement or amendment thereto or revocation thereof that is otherwise enforceable...is nevertheless unenforceable insofar, but only insofar, as the provisions of such agreement, amendment, or revocation relate to the determination, modification, limitation, or elimination of spousal maintenance or the waiver or allocation of attorney fees.”

The statute goes on to state that those questions can only be answered by the Court as a matter of law.

Why do I still see these all the time with such provisions? I wish I knew the answer to that question. Was Kanye talking about child support and not maintenance? Doesn’t really matter in Colorado. Pursuant to C.R.S. § 14-2-310, some other aspects that cannot be signed away in a prenup are those relating to parental rights and responsibilities, visitation, child support, limits or restricts the rights of a victim of domestic violence, any attempts to modify grounds for a dissolution of marriage, or any penalties for initiating a legal proceeding.

When all else fails, there is a catchall built into the statutes that states that any term in a premarital agreement is not enforceable to the extent that it violates public policy, C.R.S. § 14-2-310(2)(e).

Rather than thinking about a prenup, consider instead hiring someone to help you plan accordingly and who can counsel you on what can really be protected, just in case. As Kanye said: “I ain’t sayin’ she’s a gold digger,” but “Go ahead, get down.”